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Chapter 2 Freedom of Speech and Part IIA of the Racial Parliamentary Joint Committee on Human Rights Inquiry report Freedom of speech in Australia Inquiry into the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) and related procedures under the Australian Human Rights Commission Act 1986 (Cth) 28 February 2017 © Commonwealth of Australia 2017 ISBN 978-1-76010-526-6 PO Box 6100 Parliament House Canberra ACT 2600 Phone: 02 6277 3823 Fax: 02 6277 5767 Email: [email protected] Website: http://www.aph.gov.au/joint_humanrights/ This document was prepared by the Parliamentary Joint Committee on Human Rights and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. ii Membership of the committee Members Mr Ian Goodenough MP, Chair Moore, Western Australia, LP Mr Graham Perrett MP, Deputy Chair Moreton, Queensland, ALP Mr Russell Broadbent MP McMillan, Victoria, LP Senator Carol Brown Tasmania, ALP Senator Richard Di Natale (12.12.16) Victoria, AG Senator Sarah Hanson-Young (2.2.17) South Australia, AG Ms Madeleine King MP Brand, Western Australia, ALP Mr Julian Leeser MP Berowra, New South Wales, LP Senator Nick McKim Tasmania, AG Senator Claire Moore Queensland, ALP Senator James Paterson Victoria, LP Senator Linda Reynolds CSC Western Australia, LP Senator Rachel Siewert (3.2.17) Western Australia, AG Secretariat Ms Toni Dawes, Committee Secretary Ms Zoe Hutchinson, Principal Research Officer Ms Nicola Knackstredt, Principal Research Officer Mr Tasman Larnach, Principal Research Officer Mr Glenn Ryall, Principal Research Officer Ms Jessica Strout, Principal Research Officer Ms Eloise Menzies, Senior Research Officer Mr Josh See, Senior Research Officer Ms Morana Kavgic, Legislative Research Officer Ms Alice Petrie, Legislative Research Officer iii Table of contents Membership of the committee ....................................................................... ii Glossary ......................................................................................................... vi Recommendations ....................................................................................... viii Chapter 1—Introduction ................................................................................. 1 Referral and terms of reference .................................................................................. 1 Conduct of the inquiry ................................................................................................. 2 Structure of the report ................................................................................................ 3 Notes on references .................................................................................................... 3 Acknowledgements ..................................................................................................... 3 Chapter 2—Freedom of speech and Part IIA of the Racial Discrimination Act 1975 (Cth) ............................................................................... 5 Introduction ................................................................................................................. 5 Background to, and enactment of, Part IIA of the RDA .............................................. 6 Current anti-vilification laws at the federal level ........................................................ 8 The case for change – repealing sections 18C and 18D ............................................ 12 The case for change – amending sections 18C and 18D ........................................... 16 The case for retaining the existing protections in sections 18C and 18D ................. 30 The role for education ............................................................................................... 43 Committee views and recommendations ................................................................. 47 Chapter 3—Complaint handling at the Australian Human Rights Commission .................................................................................................. 51 Introduction ............................................................................................................... 51 Complaint handling processes ................................................................................... 51 iv Committee views and recommendations ................................................................. 88 Chapter 4—Soliciting complaints to the Australian Human Rights Commission .................................................................................................. 95 Introduction ............................................................................................................... 95 Community education and awareness of human rights ........................................... 95 The Bill Leak case ....................................................................................................... 97 Prohibiting solicitation ............................................................................................. 104 Committee views and recommendations ............................................................... 105 Chapter 5—Other reforms to better protect freedom of speech ................. 107 Introduction ............................................................................................................. 107 AHRC's engagement in freedom of speech issues .................................................. 107 The ALRC Freedoms Inquiry and other laws impinging on freedom of speech ...................................................................................................................... 110 Additional comments by Labor members .................................................... 113 Dissenting report by Australian Greens ....................................................... 123 Appendix 1—Submissions received ............................................................. 145 Submissions ............................................................................................................. 145 Form letters ............................................................................................................. 159 Appendix 2—Public hearings ...................................................................... 161 Appendix 3—Tabled documents and additional information ...................... 169 Tabled documents ................................................................................................... 169 Answers to questions on notice .............................................................................. 170 Additional information ............................................................................................ 171 Appendix 4— Complaints process prior to 1995 .......................................... 173 v vi Glossary ABF Act Australian Border Force Act 2015 (Cth) ACHRA Australian Council of Human Rights Authorities ADB NSW Anti-Discrimination Board AHRC Act Australian Human Rights Commission Act 1986 (Cth) ALRC Australian Law Reform Commission ALS WA Aboriginal Legal Service of Western Australia ASIO Act Australian Security Intelligence Organisation Act 1979 (Cth) CERD International Convention on the Elimination of All Forms of Racial Discrimination AHRC Australian Human Rights Commission CRaCR Cyber Racism and Community Resilience Research Project DCA Diversity Council of Australia DDA Disability Discrimination Act 1992 (Cth) EM 1994 Explanatory memorandum to the Racial Hatred Bill 1994 (Cth) Freedoms Inquiry Australian Law Reform Commission's Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015] HREOC Human Rights and Equal Opportunity Commission (predecessor to the Australian Human Rights Commission) HRLC Human Rights Law Centre ICCPR International Covenant on Civil and Political Rights INSLM Independent National Security Legislation Monitor ICS Investigation and Conciliation Service IPA Institute of Public Affairs vii LIV Law Institute of Victoria NATSILS National Aboriginal and Torres Strait Islander Legal Services NSW ADB NSW Anti-Discrimination Board NSW CCL NSW Council for Civil Liberties Part IIA of the RDA Sets out the framework for protection against anti- vilification at the federal level and comprises sections 18A, 18B, 18C, 18D, 18E and 18F PJCIS Parliamentary Joint Committee on Intelligence and Security President President of the Australian Human Rights Commission QUT Queensland University of Technology Racial Hatred Bill Racial Hatred Bill 1994 (Cth) (amended the RDA to introduce Part IIA) RDA Racial Discrimination Act 1975 (Cth) SDA Sex Discrimination Act 1984 (Cth) Section 18C Contains the operative provision making certain conduct on the basis of race unlawful Section 18D Provides exemptions or defences to conduct which would otherwise fall within the scope of section 18C UN United Nations UNCERD United Nations Committee on the Elimination of Racial Discrimination viii Recommendations Recommendation 1 2.137 The committee recommends further supporting, strengthening and developing education programs including those: addressing racism in Australian society; addressing the scope of conduct caught by Part IIA of the Racial Discrimination Act 1975 as judicially interpreted; and about the meaning and scope of any amendments to Part IIA of the Racial Discrimination Act 1975. Recommendation 2 2.138 Recognising the profound impacts of serious forms of racism, the committee recommends that leaders of the Australian community and politicians exercise
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