Sunday, March 26, 2017
Law Council Opening Statement on Human Rights Legislation Amendment Bill 2017
The council opposes changes to 18C on the grounds that judges have generally treated free speech with due respect in cases brought before them. That ignores the cases where judges have NOT respected free speech -- as in the Andrew Bolt case. It also ignores the fact that the very act of of prosecution can be very oppressive and expensive. Many such cases should not have been brought in the first place
Opening statement by Fiona McLeod SC, President of the Law Council of the Australia, Canberra, 24 March 2017:
I thank the Committee for the opportunity to appear before you today as part of this inquiry into the Human Rights Legislation Amendment Bill 2017.
The Bill would amend section 18C of the Racial Discrimination Act 1975 (Cth) and the complaints handling processes of the Australian Human Rights Commission under the Australian Human Rights Commission Act 1986 (Cth). In particular, it would redefine conducted prohibited by section 18C of the Racial Discrimination Act. The conduct defined to encompass the notion of racial vilification is proposed to be amended by removing the words ‘offend, insult, humiliate’ from paragraph 18C(1)(a) and replacing them with ‘harass’.
The Bill would also introduce the ‘the reasonable member of the Australian community’ as the objective standard by which contravention of section 18C should be judged, rather than by the standard of a hypothetical representative member of a particular group.
Further, the Bill will amend the Australian Human Rights Commission Act to ensure that unmeritorious complaints are discouraged or dismissed at each stage of the complaints handling process, from lodgement to inquiry to proceeding to the Federal Court or Federal Circuit Court.
The Law Council maintains the view, first expressed in submissions in 2014, that section 18C and 18D of the Racial Discrimination Act, as interpreted by the Courts, strike an appropriate balance between freedom of expression and protection from racial vilification, and should not be amended
We are guided by the objects of the Act and the judicial interpretation of the meaning of the provisions in case law.
Part IIA, including section 18C and D, give effect to important international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination 1969 that commits all State Parties to:
Prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, to personal security, and to all civil, political, economic, social and cultural rights.
The Law Council supports a proportionality approach in recognising both the right to freedom from racial discrimination and vilification, and the right to freedom of speech and expression.
The Act, as it stands, achieves this according to the case law. As Allsop J (as His Honour the Chief Justice then was) remarked in Toben v Jones (2003) 129 FCR 515 at , Part IIA of the Racial Discrimination Act provides for the balancing of free speech with ”legal protection to victims of racist behaviour”, ”the strengthening of social cohesion and preventing the undermining of tolerance in the Australian community” and the “removal of fear because of race, colour, national or ethnic origin”.
The Courts have construed the provisions in a conservative manner to the protection of the important right to freedom of speech and expression, and have found contraventions of section 18C only in cases of “profound and serious effects”, and not in cases involving “mere slights” (per Justice Keifel , as Her Honour the Chief Justice then was).
The Law Council considers that the exemptions in section 18D have provided important and effective safeguards for justified freedom of expression consistently with such protections which exist elsewhere in the law.
The Law Council has previously submitted that any amendment to, let alone repeal of any of the provisions of Pt IIA (ss 18B to 18D) should be preceded by a rigorous and comprehensive review of their operation. In relation to the exposure draft of the Freedom of Speech (Repeal of s.18C) Bill 2014, the Law Council noted that it was not aware of any evidence that the existing provisions have had or are having anything in the nature of a “chilling effect” on freedom of speech or freedom of expression in Australia.
This remains the case
In weighing amendment to any of the language of the currently enacted text of sections 18C to 18D, the Committee should consider the impact of the provisions on the enjoyment of human rights, both in terms of the promotion of, as well as interference in the enjoyment of human rights.
In this context, the Law Council notes the Human Rights Legislation Amendment Bill 2017 which is currently before the Committee for inquiry and report.
While the Law Council does not consider that the case for change has been made, if Parliament is minded to make amendments to sections 18C and 18D of the Racial Discrimination Act, the current Bill is problematic in a number of respects.
For example, omitting the words ‘offend, insult, and humiliate’ and replacing them with ‘harass’ assumes a direct personal relationship. It may have the effect of carving out media or publications where the author has no person in mind to ‘harass.’ The ultimate effect may be to limit the scope of the provision to interpersonal interaction.
Further, it is unclear what meaning should be given to the term ‘harass’ In the Equal Opportunity Act 1984 (WA), for example, racial harassment can include threating, abusing, insulting, or taunting another person. Accepting that the Western Australian definition is a statutory definition, and that ‘harass’ is not otherwise defined in the proposed amendments, it may be that ‘harass’ covers conduct that was intended to be removed from section 18C.
A number of other options have been canvassed, including by Justice Sackville who has proposed to omit the current words in the Racial Discrimination Act ‘offend, insult, and humiliate’ and replace them with ‘degrade, intimidate or incite hatred or contempt’.
Another option would be to retain the more demanding but divisive term ‘humiliate’ so that the current formulation in the Act would be replaced with ‘humiliate, intimidate or incite hatred or contempt’ rather than to adopt the term ‘degrade’.
Whatever words are ultimately adopted by Parliament, they should be consistent with the prevention of harm and social cohesion objects of the Racial Discrimination Act.
Another difficulty arises in relation to the proposed ‘standards of a reasonable member of the Australian community’ test. This is rather vague. The ‘Australian community’ is a fluid and changeable concept.
Despite these difficulties in the Bill, there are some improvements. Proposed subsection 18C(2B), which clarifies the definition of an ‘act’ for the purposes of section 18C, is welcome to ensure that the unlawful conduct can be as a result of a single unlawful act. This should be retained, if Parliament wishes to proceed with the Bill.
To the extent that the amendments tighten up the complaint handling process of the Australian Human Rights Commission and ensure complaints are dealt with fairly and expeditiously in the circumstances, the Law Council supports them subject to some technical amendments to the Bill.
Again, I thank the Committee for the opportunity to appear before you today and we are happy to answer any questions you may have where we are able to do so.
More multiculturalism in Melbourne
One reason why bystanders did not intervene would be the inevitable accusations of racism they would have copped. Blacks are untouchable in Victoria
Video of a young [black] woman handing out a vicious beatdown to another girl at a Melbourne train station has viewers scratching their heads at the indifference of commuters who witnessed the attack.
The footage, posted to Facebook on Thursday by prominent Melbourne gym-owner Avi Yemeni, shows the apparent victim being punched and stomped in what Mr Yemeni has characterised as a "racist attack".
The pink-shirted girl tries in vain to protect herself as her attacker repeatedly punches her in the head before putting the boot in several times before another girl pulls her away.
The victim is left slumped against a pole, with nothing more than a few glances cast in her direction by passersby.
Mr Yemeni, who says the footage was passed onto him by a witness, wrote that "this was an unprovoked and racially-motivated attack. The 'dark-skinned' girl was allegedly screaming racial abuse at the victim before launching into this horrific attack. Most liveable city my ass."
Mr Yemeni, a former Israeli soldier who now runs Krav Maga classes in Melbourne, signed off on the video, which he has watermarked with his name, by saying that premier "Daniel Andrews is failing us."
Nine.com.au has contacted Mr Yemeni and Victoria Police for comment. Staff at Sunshine station say they have no knowledge of the attack.
Senator to introduce legislation to force ABC to reinstate shortwave radio service
Because of its widespread availability, Radio Australia has been great PR for the country. It has spread Australian voices far and wide. If the ABC wants to cut costs, let them cut their sprawling bureaucracy. Where is the National Party on this?
South Australian senator Nick Xenophon says he will introduce legislation to Parliament to force the ABC to reinstate its shortwave radio service, which ended today.
The ABC announced in December that it would switch off its shortwave transmission to remote parts of northern Australia and across the Pacific.
Mr Xenophon said his introduction of legislation next week was not the ideal way to handle the issue, but something had to be done. "This is a pretty messy way of doing it — putting up a bill — but it will force the ABC management to account," he said.
"If it means part of the solution is trying to squeeze more money out of the Government, then so be it."
Mr Xenophon said he believed the ABC had underestimated the impact of its decision.
"The fact is this will affect thousands of Australians who are in remote areas, but it seems it will affect many tens of thousands, perhaps hundreds of thousands of people who are regular Radio Australia listeners throughout the region," Mr Xenophon told Radio Australia's Pacific Beat program.
"This is an essential service not just for the bush in Australia but for the region. I hope I can get bipartisan support to reverse this decision."
The ABC said shortwave technology was out of date and it would save $1.9 million by cutting the service, which it said would be reinvested in expanding content and services.
The national broadcaster said in a statement there would be a transition program and it "has offered comprehensive advice on how to best access emergency information, ABC News and entertainment".
"The ABC will assist with the transition to new technologies … as well as the use of modern and reliable devices such as emergency GPS beacons and affordable satellite telephones," the statement said.
Pastoralists, fishermen among those angered by decision
But the decision has prompted widespread criticism from federal and Northern Territory MPs, pastoralists, fishermen and tour operators, as well as from communities across the Pacific.
"This is shocking news, totally shocking news," said Francesca Semoso, Deputy Speaker of Bougainville's Parliament in Papua New Guinea.
The ABC's decision to end Radio Australia's shortwave service has raised questions about who will fill the void.
"The reason being that wherever you go — if you are up on the rooftop of your house, if you are up in the mountains in Bougainville, if you are down in the valleys, in the Pacific islands in Papua New Guinea, in Bougainville — the only medium that can reach me at that location is shortwave."
Northern Territory Cattlemen's Association chief executive Tracey Hayes said the move would have a profound impact on the wellbeing of isolated workers and families.
"There will be just silence in the vehicle and they would have had no contact with the outside world," she said.
"I can't imagine what it is going to be like for people who are being put in that position."
Northern Territory MP Gerry McCarthy said he had invited ABC managing director Michelle Guthrie to his remote electorate to listen to people affected by the decision. "Come to the Northern Territory for a start, consult with the people that are affected, real Australians out there in remote areas," he said.
"Also we've offered the help and support of the [Northern Territory] Department of Housing and Community Development to go and do some serious analysis about who are the users of shortwave."
ABC Radio will continue to broadcast across the Northern Territory on FM and AM bands, via the viewer access satellite television (VAST) service, streaming online and via the smartphone app.
Three current reports below
Another sawmill becomes a victim of Greenie policies
Victoria's Heyfield timber mill, Australia's largest hardwood mill, will close in 2018 -- which will close down the whole town around it. Heyfield is totally dependent on the mill. It will become a ghost town, greatly disrupting the lives of most people in the town
Victoria's Heyfield timber mill is to close, putting 250 people out of work, after the owners rejected a government lifeline.
Australian Sustainable Hardwood chief executive Vince Hurley says the Gippsland-based mill will close in September 2018 after the state government cut its timber supply.
The mill, Australia's largest hardwood mill, is now looking to relocate to northwestern Tasmania to process plantation hardwood, he told AAP.
The company rejected Victoria's offer of a three-year contract of one year's timber supply at 80,000 cubic metres and two years at 60,000 cubic metres as well as a $4.75 million, three-year operational subsidy.
ASH maintains it needs at least 130,000 cubic metres of saw logs a year to continue operations - a number the government says is not environmentally sustainable.
Premier Daniel Andrews offered to buy the mill if ASH didn't want to run it any longer because he said the business had a strong future.
Mr Andrews said the government would offer a reasonable price if another buyer could not be found. "This is a fair offer and a reasonable offer as we have had a look at the books of the company and we believe it is viable even at those lower volumes," he told ABC radio.
But Mr Hurley says ASH hadn't heard of the offer until the premier's statement was released on Friday morning and is "disgusted" staff had to find out through the media. "We were expecting the premier to honour a commitment that things should have been heard from us first," he said.
If the government did buy the mill, it would have to substantially change operations to be viable on just 60,000 cubic metres of logs, Mr Hurley said. "Not only would you have to buy it, you would have to refit it. It would be a huge risk," he said.
The company is backing a CFMEU and Committee for Gippsland campaign to get the government to change its mind about timber supply. The CFMEU says it does not accept VicForest's decision on the availability of wood.
Nationals leader Peter Walsh said there was enough supply to give ASH the timber it wants and he doubted the government's ability to buy the mill.
"As I understand it the mill's not necessarily for sale and it doesn't matter who owns the mill, it still needs timber," he told reporters.
ASH says it will now restart negotiations with the Tasmanian government about moving the mill to the island state.
Two quit Australian climate authority blaming government 'extremists'
Quiggin is a big-mouth Leftist from way back
Two members of the Climate Change Authority have resigned, with one accusing the government of being beholden to rightwing, anti-science “extremists” in its own party and in the media.
John Quiggin told Guardian Australia he informed the federal minister for environment and energy, Josh Frydenberg, of his resignation on Thursday. It follows the resignation of fellow climate change authority member, Danny Price, who quit on Tuesday.
“The government’s refusal to accept the advice of its own authority, despite wide support for that advice from business, environmental groups and the community as a whole, reflects the comprehensive failure of its policies on energy and the environment,” Quiggin said.
“These failures can be traced, in large measure, to the fact that the government is beholden to rightwing anti-science activists in its own ranks and in the media. Rather than resist these extremists, the Turnbull government has chosen to treat the vital issues of climate change and energy security as an opportunity for political point-scoring and culture war rhetoric.”
Quiggin said his immediate reason for resigning was the government’s failure to respond to the authority’s third report of the special review into potential climate policies, which the government had requested and which it was legally required to respond to.
“The government has already indicated that it will reject the key recommendations of the review, particularly the introduction of an emissions intensity scheme for the electricity industry.”
Quiggin said he didn’t believe there was anything to be gained “by giving objective advice based on science and economic analysis to a government dominated by elements hostile to both science and economics”.
Price told Guardian Australia he had resigned because he “didn’t think it was appropriate for a member of a government agency to be openly critical of government policy”.
“I think the authority does really good work, but I didn’t think I could stay if I was going to continue to criticise the government’s policy making and I didn’t see any chance that it would get any better,” he said.
“I really hate the complete ad hocery of it all … the idea that anything at all can be thrown out by a government in a political panic.”
Quiggin was appointed to the authority in 2012, and Price in 2015. Both were appointed for five-year terms.
The Climate Change Authority’s special review was undertaken last year, and recommended the government institute two emissions trading schemes and strengthen regulations if it was to meet Australia’s 2030 emission reduction targets.
The report was criticised by the Climate Institute, the Greens, and other climate groups and experts criticised elements of the report, and in August Guardian Australia revealed a split in the ranks of the authority, with three members writing a dissenting report.
However many groups – including the Business Council of Australia, Energy Networks Australia, retailer Energy Australia, electricity provider AGL, the Climate Change Authority, the National Farmers Federation and the CSIRO – have also called for the introduction of an emissions intensity trading scheme.
Frydenberg had canvassed a trading scheme following the release of the Finkel review into energy security in December, but the policy was dumped after three days following objections by senior government ministers.
The government’s openness to a scheme has also been cited as a reason for Cory Bernardi’s resignation from the party in February.
The Climate Change Authority was set up in 2011 as an independent statutory agency, and the Coalition has maintained that it should be abolished after failing to get its legislation to do just that through the Senate.
Frydenberg told Guardian Australia: “the government thanks both Danny Price and John Quiggin for their service and the government will continue to engage constructively with the authority”.
The Greens climate and energy spokesman, Adam Bandt, said the government’s “dangerous pandering to climate change deniers” had left it friendless. “When added to previous resignations, this exodus is the equivalent of half the reserve bank board resigning over the government’s economic policies.”
Tony Abbott: Hazelwood Power Station should stay open
IF WE are serious about tackling Australia’s looming energy crisis, the last thing we should be doing is closing 20 per cent plus of Victoria’s (and 5 per cent of Australia’s) base load power supply.
Yet that’s what’s scheduled to happen next week unless there is an eleventh hour intervention by government or a last-minute change of heart by the station’s operator.
Sure, brown coal is more emissions-intensive than gas.
Yes, coal lacks the “big new thing” allure of pumped hydro.
Still it’s given Victoria and South Australia cheap, reliable base load power, making those states our country’s manufacturing hubs.
And until equally cost effective and reliable alternative supplies can be established, having Hazelwood close is sheer, avoidable folly.
Keeping Hazelwood open would make a lot more difference than pumped hydro which is trying to solve today’s problem in some years’ time.
Still the Prime Minister’s Snowy Scheme 2.0, plus the South Australian commitment to a new gas-fired base load power station, shows that our leaders are finally thinking about what might be done to keep the lights on.
So far, though, no one in authority is talking about the one thing that could boost base load power by almost 2000 megawatts immediately: not closing Hazelwood next week.
If we want secure and affordable power supplies, we can’t lose the ones we currently have, even if they involve burning coal.
The past few months, with the statewide blackout in South Australia and the blackout which badly damaged the Portland aluminium smelter in Victoria, have shown the damage that intermittent and unreliable wind and solar energy is doing to our power supply.
There’s no doubt that climate change obsessions have played havoc with Australia’s energy policy.
Fifteen years ago, thanks to a largely privatised and deregulated energy market, our power prices were among the world’s lowest.
With the world’s largest readily available reserves of coal, gas and uranium, we were an affordable energy superpower.
Since then, climate-induced political fiddling has put prices through the roof and removed Australian manufacturing’s one big comparative advantage.
It’s damaged our standard of living and it’s destroyed thousands of jobs.
My government scrapped the carbon tax and reduced the renewable energy target but the preference given to wind and solar power continues to drive coal and gas fired power stations out of business and to put security of supply at risk.
Depending on conditions, wind varies between providing nothing and everything that South Australia needs.
Because of wind’s preferential status and minimal marginal cost, more reliable and cheaper-overall forms of power generation simply can’t compete.
SA’s private Pelican Point gas-fired power station is currently mothballed because policy-driven market distortion and Greens-driven restrictions on gas supply have made it uneconomic. Meanwhile, renewable energy-obsessed Labor governments, dramatically increased coal royalties, and political risk have made coal-fired power unbankable here even though it’s still the most affordable and reliable source of energy.
If price rises are to moderate and if jobs are to be preserved, energy policy needs a complete rethink.
The renewable energy target, in particular, needs to be reconsidered so that unreliable power is no longer shutting down the reliable power everyone needs.
As always, it’s the unintended, unanticipated consequences of well-intentioned policy that turn out to be the most significant.
The dream of “clean, green” wind and solar power over “dirty, dangerous” coal — and the subsidies to bring it about — has led us to the verge of catastrophe.
Once Hazelwood is gone, the plant mothballed and the workforce dispersed, it will be almost impossible to reopen.
Meanwhile, all the other schemes to produce large amounts of coal-free base load power are years and years from fruition.
At least until Snowy 2.0 can produce 2000 megawatts of cost-effective and droughtproof hydro power, Hazelwood should stay open.
That wouldn’t be bailing out a failing business. It would be securing the services that Australians need until market forces are once more driving the system.
Keeping Hazelwood open would be a good way for Prime Minister Malcolm Turnbull to show that energy policy in Australia won’t be hijacked by ideological fixations in France.
One of the factors in its looming closure — not the only one but an important one — is the French socialist government (which part owns Engie, which part owns Hazelwood) wanting to boast that it has closed down one of the world’s “dirtiest” power stations.
Keeping Hazelwood open would cap off a good week for the Prime Minister.
He’s fought for free speech, announced a new crack down on union corruption, and released an “Australia First” citizenship statement.
Stopping next summer’s looming blackouts with bold action now is a chance to keep the momentum.
Posted by John J. Ray (M.A.; Ph.D.). For a daily critique of Leftist activities, see DISSECTING LEFTISM. To keep up with attacks on free speech see Tongue Tied. Also, don't forget your daily roundup of pro-environment but anti-Greenie news and commentary at GREENIE WATCH . Email me here