Explainer: the Freedom of Speech Inquiry

After ongoing debate about freedom of speech in light of Bill Leak's controversial cartoon and the dismissal of the QUT discrimination case, the Federal Government has announced a Parliamentary Inquiry into Freedom of Speech.

NITV takes a look at the events that have lead up to this announcement and the two key focuses of the Inquiry: s 18C of the Racial Discrimination Act and the complaints process of the Australian Human Rights Commission.

The inquiry

The Prime Minister has announced a Parliamentary Inquiry into Freedom of Speech to determine whether the law imposes unjustifiable limitations on free speech and to make recommendations about any changes that should be made.

The inquiry will be undertaken by the Joint Parliamentary Committee on Human Rights and headed by Liberal MP Ian Goodenough. The key areas of focus will be the application of s 18C and 18D of the Racial Discrimination Act on freedom of speech and whether the complaints process of the Australian Human Rights Commission should be reformed.

The press release from the Attorney-General stated 'It is important that Australia strikes the right balance between laws which protect social harmony and mutual respect, and the fundamental democratic value of freedom of speech. The purpose of the inquiry is to ensure that we have that balance right.'

The announcement comes after a party room discussion, with 18 Coalition MPs speaking out about the issue. The majority want the words "insult" and "offend" removed from Section 18C of the Act arguing that they impede on free speech.

Professor Gillian Triggs has welcomed the news and says the Human Rights Commission is open to finding new ways to strengthen the application of Act.

“As far as 18C is concerned we're open to seeing what the inquiry might suggest, whether the language might be clarified and - in our view - strengthened that enables us to support the multicultural society that we are.”

The inquiry was first suggested in October by Liberal Senator Dean Smith in the wake of the QUT case and complaints made to the Human Rights Commission over Bill Leak’s controversial cartoon.

“The law should be constantly under review and particularly now when those QUT students are at the coalface of the law, then I think it should be top of mind for the government with other issues” he told Sky News.

Controversial parliamentary inquiry into freedom of speech announced
Two months ago, the Prime Minister said any changes to Australia's race hate laws weren't a priority. But this changed today, with the announcement of an inquiry into the Racial Discrimination Act.

The QUT case

Last Friday the Federal Court dismissed the racial discrimination case brought by Cynthia Prior, an Indigenous administrative officer at the Queensland University of Technology (QUT) against three students. The students, Alex Wood, Jackson Powell and Calum Thwaites, were being sued under section 18C of the Racial Discrimination Act over social media posts they allegedly made in 2013.

The complaint was originally lodged with the Human Rights Commission in relation to a Facebook post by Alex Wood: "Just got kicked out of the unsigned Indigenous computer room. QUT is stopping segregation with segregation." Jackson Powell, another student at the University, then added the comment, "I wonder where the white supremacist lab is." Calum Thwaites was accused of then writing "ITT N-----s" underneath the initial post, however he has consistently denied this claim.

After the case was dismissed, Tony Morris QC who represented Mr Thwaites declared that the case never should have made it to court.

"There is one person to blame for that, one person, and that's Professor [Gillian] Triggs, the head of the Australian Human Rights Commission," Mr Morris said to the ABC.

Mr Morris claimed that Professor Triggs should have dismissed the matter.

"Whilst the young men who have been the subject of this particular litigation are victims, so is Miss Prior, the complainant," Mr Morris said. "Who can blame her for acting on the encouragement that she gets from the Human Rights Commission?”

The conflict between Malcolm Turnbull and Gillian Triggs

On Monday, the Prime Minister Malcolm Turnbull responded to the Court’s finding by suggesting that the Human Rights Commission has not done itself or its reputation any favours by bringing the case.

"Now, frankly, what the Human Rights Commission needs to do is reflect on whether, in making its decisions as to which cases to pursue and which cases not to pursue, it has been doing so in a manner that enhances the reputation both of the commission and respect for the discrimination [act]," he told the ABC.

Professor Gillian Triggs, hit back explaining that the comments were “deeply misleading” as the Commission cannot bring cases before the court, it simply investigates the complaints that are made.

The complaint that led to the QUT case was terminated by the Human Rights Commission in August 2015, before the case was brought in the Federal Circuit Court.

She accused News Corp and politicians "who have deliberately misunderstood the law" of orchestrating a campaign against the Commission.

"There is no doubt that they have deliberately undermined a process that proceeds quietly, with 20,000 matters, plus formals complaints, each year," she told Fairfax Media.

What is the role of the Human Rights Commission?

In a statement issued on Monday, the Human Rights Commission explained its process.

‘At no stage does the Commission initiate or prosecute a complaint.'

'If the Commission receives a complaint in writing alleging a discriminatory act, the Act provides that the Commission must investigate the facts and attempt to conciliate the matter.’

Under Section 20 of the Australian Human Rights Commission Act the Commission can decide not to inquire into complaints that are “frivolous, vexatious, misconceived or lacking in substance”.

As the Commission is not a court or other judicial body, it cannot make any legally binding determination on whether any breach of the Racial Discrimination Act has occurred. After the Commission has terminated a complaint, it cannot prevent the person who originally made the complaint from taking their case to court.

The primary focus of the Commission is to resolve disputes so that both parties can avoid going to court.

In 2015-16, 76% of the complaints that were conciliated by the Commission were resolved. Of the complaints that went through the Commission’s process 3% ended up going to court, including 1 out of 80 racial hatred complaints that were made.

The Commission has asked the Government for amendments to be made that would allow them to streamline the complaints process, including raising the threshold for accepting complaints.

What is s 18C and how does it work?

Section 18C makes it unlawful to commit a public act that is reasonably likely to offend, insult, humiliate or intimidate another person or a group of people based on their race.

The Section outlines an unlawful act rather than a criminal offence and monetary damages or an apology are usually awarded to the person or group being discriminated against. Section 18D also includes broad ranging exemptions, such as '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.’

A history of Section 18C and the Racial Discrimination Act
From complaints about being called a ‘Pom’ to Holocaust denial, the Racial Discrimination Act has had a long and checkered history. While some cases have ruled against racist remarks, many complaints about racial discrimination have also been dismissed by the courts.
Racial Discrimination Act 40th anniversary: Commissioner Q & A
Forty years since the passage of the Racial Discrimination Act, how relevant is this piece of legislation to Indigenous Australians today? NITV speaks with Race Discrimination Commissioner, Dr Tim Soutphommasane.

Racial Discrimination Commissioner, Tim Soutphomassane, spoke to NITV on the 40th anniversary of the Racial Discrimination Act late last year.

“Before the Act was introduced there was little that people could do in response to experiencing racial discrimination. The law was not on the side of many victims of discrimination, including Aboriginal and Torres Strait Islander peoples. The Act makes racial discrimination unlawful.”

However, he admits that Australia still has a long way to go when it comes to racism.

“The consultations we conducted this year [2015], to coincide with the 40th anniversary of the Racial Discrimination Act, found that Aboriginal and Torres Strait Islander people continue to face systemic institutional discrimination. “

Approximately 15 claims brought by Indigenous Australians under s 18C of the Racial Discrimination Act have reached the courts in the last twenty years.