Proposed changes to Racial Discrimination Act need to be redrafted

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Australian Broadcasting Corporation

Broadcast: 26/03/2014

Reporter: Tony Jones

Gillian Triggs the President of the Human Rights Commission which receives complaints about racial discrimination discusses the proposed changes to the Racial Discrimination Act and says the draft does not meet appropriate legal standards and will have to be redrafted.

Transcript

TONY JONES, PRESENTER: This story is about the bigotry debate and the Abbott Government's proposed changes to the Racial Discrimination Act have drawn a wave of criticism from the Opposition and leading figures in the Indigenous, Jewish and other ethnic communities. Well the Prime Minister insists the changes will bolster free speech while adding strong provisions against racial vilification. The Human Rights Commission is tasked with receiving complaints about racial discrimination. The commission's president, Professor Gillian Triggs, joined us here in the studio just a short time ago. 

Gillian Triggs, thanks for joining us.

GILLIAN TRIGGS, PRESIDENT, HUMAN RIGHTS COMMISSION: Thank you for having me.

TONY JONES: Now, George Brandis says people do have the right to be bigots. In a free country, people do have rights to say things that other people find offensive or insulting or bigoted. What would be the implications to public discourse if that concept is ultimately written into the law?

GILLIAN TRIGGS: Well it's a rather unfortunate remark to have made immediately before you've introduced legislation that dramatically alters our current law, but I think the point that's being missed by a broad statement that we've a right to be a bigot is that the key point about the racial vilification legislation is that it must be in public and it must be made because of race. Now, the Attorney may be right; we can be bigots at home or in a private context, but the key point about the current legislation is that you cannot be a bigot on racial matters in the public arena.

TONY JONES: But he seemed to be saying you can be - you should have the right to be bigoted in public. Is that correct?

GILLIAN TRIGGS: Well, that is certainly an interpretation one could make from this very broad statement that he's made.

TONY JONES: Well, I mean, I can only take him at his own word. Now, the Oxford definition of bigoted is, "... to be unreasonably prejudiced or intolerant". The Webster definition of bigot is, "A person who unreasonably hates or refuses to accept members of a particular group such as a racial or religious group". In fact most definitions of bigotry have race written into them. Isn't this a sort of racism?

GILLIAN TRIGGS: Well, that could very well be the implication, but I think we probably have to stick to the words at the moment that the Attorney has finally produced for his reform of a current law, and there, what he's done is to choose the notion of vilification on racial grounds.

TONY JONES: Yes. We'll come to that in more detail. You do have to look at the actual words of the proposed changes.

GILLIAN TRIGGS: That he's actually used.

TONY JONES: But when he talks about it, his intentions being that you ought to have the right to be bigoted, does that mean you ought to have the right to be racist?

GILLIAN TRIGGS: Well if we take the definitions that you've cited, and I think that's a pretty fair estimate of what the general meaning is, then it does seem to include the element of racism - most definitions include that.

TONY JONES: Let's take the case, for example, of the young woman in the AFL ground who yelled racist abuse at the Indigenous footy star Adam Goodes. Could a decent lawyer make a case with the legislation as it's now proposed that this is actually legal to do this?

GILLIAN TRIGGS: Under the current law I think you would say that this was - fell within that definition that we're all now so familiar with: insulting, offending, humiliating and intimidating. I think we could say it falls within that. But the next question that perhaps isn't understood as well as it might be is the various defences that apply. And if the defence - the claim or the words were used in good faith, fair comment, if they were accurate etc., you would have a defence. So the answer to your question is: to make that statement in the context in which she did probably would fall foul of the current legislation.

TONY JONES: But what about the legislation as it's proposed to be changed? Would it be a lot easier to make a case that that's OK to say that because you're just expressing your bigotry?

GILLIAN TRIGGS: It would and the reason is the proposed exposure draft specifically makes legal an act or comment as part of public discussion in a social context - is a paraphrasing of what is included. So, if the remark is made as a part of public discussion in a social, academic, artistic, political, religious, etc. circumstance, then that is OK, that's not prohibited. Or, to put it more positively, it's valid. So, to go back to your example of the abuse in a football match, it's entirely possible that a judge would say, "A football match is a social context. This is part of a social, public environment and it's a remark that would be protected by the new proposed legislation." Now of course I don't know how a judge is going to interpret it, but it's certainly a sort of an argument that a lawyer could make.

TONY JONES: Yeah. Senator Brandis says he does want to stop racist abuse and he says his amendments to the act will actually do that. Can you see how that would be the case?

GILLIAN TRIGGS: Well I think that the elimination of the exemptions that require the words, in this case, to be accurate, in good faith, fair comment or words of that kind, once those have been taken out - and they have been taken out - then it really means that it's fair game. You can say pretty much whatever you like on the basis that it's in a public context and it's public discussion about this range of issues, religious and otherwise.

TONY JONES: Well he says you can't because the new test, presumably for what constitutes racial abuse, is to be determined by applying the standards of an ordinary, reasonable member of the Australian community. Is there a fundamental problem with this given that the standards change from time to time?

GILLIAN TRIGGS: Well certainly and that means that a judge would always have to look at the matter from community standards as that judge believes them to be at that point of time. Now, English judges have used the notion of the "reasonable man on the Clapham omnibus"; for us, it might be the reasonable woman in the Pitt Street Mall. But the point is that judges always have to make these somewhat subjective judgments about what they think the community would think at any given point of time. Now, up to a point, all legal systems do this and judges have to grapple with that problem. But in the notorious Bolt case, the judge there felt that not only did you look at wide community expectations, but you also looked at the group that was being hurt. What would their responses be? - in this case, "fair-skinned" Aborigines or Aborigines generally, Australia's first nation's people. That is a way in which a judge can get a better sense of what community values are by looking at the victim group. This proposed amendment to the legislation would, I think, prevent that. It requires a much broader understanding of what the Australian community believes and it's of course a much more difficult test for a judge to give effect to.

TONY JONES: Going back to my earlier point, we had a period in Australia where community standards were very different on issues like this. We had something called the White Australia Policy, which was almost racism written into law. I mean, does that mean that in the future it will be OK to be outright racist because that's a community standard?

GILLIAN TRIGGS: Well, again, I think a judge would have to look at it in the context of the environment and the contemporary environment in which the matter is being decided. Community standards do change, and as you say, many decades ago we felt that White Australia Policy was more than acceptable. And that's of course changed and I must stress that. But nonetheless, I think your core point is: this is a somewhat subjective or movable feast in determining exactly what community values are and they do depend upon judges having a fair understanding of this.

TONY JONES: Now Senator Brandis says he's improving the act because before his proposed changes, there was nothing in federal law mentioning racial vilification. Is that the case and is this an improvement in any way?

GILLIAN TRIGGS: Well it is true that the legislation as it currently standards does not deal with racial vilification and I think one can say that it's not a bad thing to use a word that most Australians understand being a demeaning attack on a person's integrity or their opinions. So, to the extent that much of the debate has focused on the community's concern about the low level of the words "offend" and "insult". Now I'm not saying I necessarily agree with that view, but nonetheless it's one that the community has expressed and Senator Brandis has picked up. So it's not unreasonable for him to say, "Well, I want to find new words and one word is vilification," so, I can understand the process of logic.

TONY JONES: Actually the word vilification doesn't appear. The word vilify does appear and it's very interesting, the context. Under his bill it would be unlawful for a person to do an act, otherwise than in private, if the act is likely to vilify another person or group of persons." Further down it says, "For the purposes of this section, vilify means to incite hatred against a person or a group." Now, that's a very narrow definition of what vilify means, as you said earlier, to most people.

GILLIAN TRIGGS: That's right. I think it - but the other curious aspect of this definition is that it actually requires a third party. You've got the person making the vilifying remark or behaving in that way, you've got the victim, but you - to satisfy the definition you've also got to show that you've inspired or incited hatred in another person. So this is becoming a very complex but also very narrow definition which actually means that for practical purposes it's almost never going to be possible to prosecute.

TONY JONES: Could a way of fixing this, from your point of view - because obviously we're now in a period of negotiation - to change the definition of vilify in the proposed act to include what vilify actually means in dictionaries; that is, to demean someone, to put them down, defame them, to lower their estimation - the actual Latin meaning of it is to lower estimation?

GILLIAN TRIGGS: Well that's one of doing it. One of the great difficulties with the - with this exposure draft is that it's so - it so confines the definition of intimidation and vilification that it's highly unlikely you're going to be able to prosecute anybody at all. So one solution, if we're trying to find a middle compromise, is to open up that language in the way that you've described. Another is to reintroduce or retain the language requiring good faith or accuracy or fair comment. These are ways of improving the exposure draft that meets some of the concerns that the Attorney has in reflecting what he believes to be Australian attitudes, but avoids the difficulty of the polarised positions in which many commentators are today.

TONY JONES: Now what do your fellow commissioners think of this? You've got a new commissioner, Tim Wilson. He wanted changes to the act. Presumably he's had a chance to look at it. Presumably as group of commissioners you've been able to sit down and talk about this. 

GILLIAN TRIGGS: Yes.

TONY JONES: Is he on the same page with you or is he on the same page with the Attorney-General?

GILLIAN TRIGGS: Well, despite all the concerns that were initially expressed about the appointment of Tim Wilson, he joined the six other commissioners and me as president yesterday and we went through the exposure draft and we agreed a quite extensive media release and we did it unanimously and we did it in the way we always do our business at the Human Rights Commission. And Tim's on board - Tim Wilson - and Tim Soutphommasane, who takes a rather different view, is also on board in terms of that general press release. Now I think what may very well happen in the coming weeks as we prepare a more detailed legal response to the exposure draft is it's entirely possible that one or other of the commissioners will take a separate opinion. But we're a human rights body. We welcome different points of view. If that happens, well and good. We'll cope with it.

TONY JONES: Do you all agree that the draft itself is insufficient, it is not what you actually need? 

GILLIAN TRIGGS: Yes, I think that's a fair statement. It's agreed that it doesn't yet meet what we believe are appropriate legal standards and it requires considerable redrafting.

TONY JONES: Finally, if this new freedom of speech bill becomes law, will it actually be a post facto justification for what Andrew Bolt wrote in those notorious articles about those "light-skinned" Aboriginal people?

GILLIAN TRIGGS: Well I think that is probably the greatest defect with this exposure draft because it does seem to be a contrivance deliberately to ensure that a Bolt-like case would not emerge again. And one of the phrases one learns in Law school, as I did many decades ago, is bad cases make bad law. And I'm afraid that Mr Bolt was successfully prosecuted under civil law and he failed to meet the defences because of inaccuracy and lack of good faith. Now, that was the law, that is the law. To try to change the law to deal with that one case is probably, as a matter of legislative drafting and law reform, not a wise approach to law.

TONY JONES: And is that what you think has actually happened here, that it's so narrowly an attempt to post facto defend the Bolt case that it's actually failed as law?

GILLIAN TRIGGS: Well I think that's why we have an overreach. I think it's fair to say there's a genuine community concern that the words "offending" and insult" put the threshold at too low a level that. That was if you like a mischief to be addressed by reform legislation, but to go so far as to eliminate the defences of good faith and fair comment and accuracy is an overreach which I think needs to be brought back to a compromise when the Attorney finally produces a bill for Parliament to consider.

TONY JONES: Gillian Triggs, we thank very much for taking the time to come and talk to us tonight.

GILLIAN TRIGGS: That's a great pleasure. Thank you very much.

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Appeal 474.14 criminal Code              Appeal from Bail Application from the Supreme Court, Trial Division – Criminal Law – Bail – Revocation, Variation, Review and Appeal – Appeal by the Commonwealth Director of Public Prosecutions – Respondent (in this hearing) was convicted after trial of two counts of using a carriage service to harass and two counts of using a carriage service to make a threat – Ogawa sentenced to six months imprisonment on each count and ordered to be released after serving four months imprisonment subject to certain conditions – The learned trial judge in his sentencing remarks observed that Ogawa’s behaviour in court had been “disgraceful”, that she had not been legally represented and that her conduct had resulted in her exclusion from the court for most of the proceedings – Reference was also made to remarks by a psychiatrist having diagnosed Ogawat as having a personality disorder – A judge of the Supreme Court, Trial Division, granted Ogawa bail pending the hearing of the appeal – On Appeal – Ordinarily, in order to establish “exceptional circumstances” it will be necessary to show that “there are strong grounds for concluding that the appeal will be allowed” and that the appellant may be required to serve an unacceptable portion of his or her sentence before the appeal can be heard – In his summing up the learned trial judge highlighted the evidence of the persons against whom the threats were made by informing the jury that they “will understand that counts...focus to some extent on the evidence of those witnesses and that of [the Registrar of the Federal Court]” – The judge’s directions as to the elements of the offences of making threats were thus, arguably, tainted by the judge’s intimation that the evidence of the persons to whom the threats were directed was of relevance in determining whether the elements of the offences had been proved – The evidence, including evidence of the Registrar that he found the contents of one of the respondent’s emails “incredibly chilling” and in which he expressed his concern for the safety of residents of the university’s accommodation in which Ogawa was residing, was likely to have distracted the jury from focussing on the question of whether Ogawa had the requisite intention at the relevant time – It is thus strongly arguable that inadmissible and potentially highly prejudicial evidence was admitted and that the summing up included material errors – Another ground of appeal appears to have substance – It is to the effect that the learned trial judge failed to direct the jury that Ogawa’s statement that she “had a panic attack” was relevant to Ogawa’s intention at the time of the alleged threats – The evidence of Ogawa’s emotional and mental state at the time the alleged offences were committed were highly relevant to the jury’s determination of Ogawa’s intention for the purposes of the threat charges and relevant to the harassment charges having regard to the fault elements of intention and recklessness – There was evidence from witnesses that also supported a conclusion that Ogawa was in an unstable, and possibly deteriorating, mental state – The summing up by the trial judge was silent on the relevance of the evidence to the assessment of Ogawa’s state of mind – The trial judge treated the evidence in relation to “the panic attack” by directing that it was potentially an admission by Ogawa that she was the sender of the emails – There is thus an argument, particularly having regard to the lack of representation of Ogawa and, indeed, her absence from the trial, that insufficient was done by the trial judge to maintain a proper balance in the summing up by directing the jury’s attention to matters which may have been detrimental to the prosecution case but favourable to the accused’s – A summing up must be balanced and fair – Of course, it is impossible and also undesirable, to express any definitive views about this and most of the other grounds of appeal bearing in mind the nature of the appeal, the material before the Court and the limited extent of the argument – The Court’s conclusion based on limited material and brief argument, is that the prospects of some of the grounds of appeal are considerably greater than the primary judge thought – Of particular concern that the respondent may have been denied procedural fairness – HELD: Appeal dismissed.

 474.17 CONVICTION OVERTURNED OVERTURNEDOVERTURNEDNEWS

Brett David Starkey, 50, wins appeal of conviction for menacing emails sent to 107 people

• BROOKE BASKIN
• THE COURIER-MAIL
• JUNE 04, 2013 1:56PM

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File picture. A man convicted of using a carriage service to menace - sending dozens of angry emails to 107 people - has won an appeal against the sentence.
  Source: Supplied

A SPAMMER who sent 88 emails to more than 100 recipients over 46 days calling for the extermination of "left-leaning politicians and their associates" has had his conviction overturned on appeal.

Brett David Starkey, 50, was convicted in the Brisbane Magistrates Court of using a carriage service to menace and was sentenced to one year of probation in December for sending the emails to 107 people between February 15 and April 11, last year.

The majority of the recipients were federal and state politicians but also included media organisations, the Australian Electoral Commission and government organisations.

The emails were numerous but included the claim Kevin Rudd MP was a "treasonous criminal" who needed to be "jailed or shot" and calls for "Labor and Greens Parties" to be "eliminated from existence".

Other emails written by Starkey claimed certain "conspirators", named as Prime Minister Julia Gillard, Mr Rudd, former Greens leader Bob Brown and Malcolm Turnbull, should "face charges of treason".

Starkey appealed the decision on numerous grounds, including the assertion that a "reasonable person" would not have found the emails "menacing, harassing or offensive".

He argued only one complaint was made about the emails, despite some 106 others receiving them, and it came from an individual who had an "opposing ideology" and "who failed to absorb all of the emailed communication".

Lawyers for the Commonwealth Director of Public Prosecutions argued the recipients of the emails would have had no idea what the sender was capable of, other than he was "very angry, very aggressive" and referred to people "being shot in the head".

They claimed a recipient of the emails might "reasonably conclude that the sender was not calling for so much the taking up of arms but for exterminating left-leaning politicians and their associates".

In a 13-page published decision, District Court Judge Kiernan Dorney QC set Starkey's conviction aside and dismissed the complaint against him.

Judge Dorney said he was not satisfied beyond a reasonable doubt the emails were "menacing, harassing or offensive" when applied to the objective test of what a reasonable person would find so.

He said the objective test for "menace" would imply the receipt of the email would cause apprehension, if not a fear, for the recipient's own safety.

"It might even be projected that the significant concern was whether to consign each to the 'DELETED' folder or to the 'SPAM' folder in the email software program," Judge Dorney said.

Today in Court I was found guilty of all 7 Charges by a Magistrate.
She found that exposing corruption and systemic  corrupt conduct was the most disgusting things she ever read.
She claimed  that standards of speech was so low she couldn't read  much of it in court and it breached  all standards. She found that my blogs were of the worst standards and  found it difficult to put into words how disgusted she was.
She said my writing was   of the lowest standard , finds everything I write offensive, I am crude repugnant  and disgusting, I am vile, claimed ITSA staff engaged in sexual acts, found there was no  rationale  in anything I wrote and told me to bring along my psychiatric certificate............... 
 So taking into account  Child pornography, Rape , Murder, fraud, slavery, Importation of drugs it appears I am up there with them all.
Well... Well   this should be a great appeal  considering the comments I have to rely on!!!!!

Chris Kenny v The Chaser - an update

A judge has ruled that Chris Kenny's defamation against the ABC can proceed to a jury.

And talking of disrepute ...

Let us turn to news of Chris Kenny, columnist at The Australian, who was famously portrayed as a "dogf***er" last year by the ABC’s The Hamster Decides.

We’re not going to show you the photoshopped image, but it was much like this one, which The Chaser team sent to Media Watch when we questioned whether their attack on Kenny was either funny or smart.

Last week, in the NSW Supreme Court, Kenny won the first round of his legal action against the ABC and Chaser team, which prompted this reaction from Ben Fordham on Sydney Radio


BEN FORDHAM: A judge has ruled, that the ABC was defamatory, against journalist Chris Kenny after it aired a skit, with him engaging in bestiality ...

— 2GB, Sydney Live, 6th March, 2014

In fact, the judge has merely ruled that the case can proceed to a jury.

And he threw out the most serious imputation that the skit suggested Kenny actually had sex with dogs.

But Justice Beech-Jones did call the Chaser’s attack ‘grossly disproportionate’ and he suggested it could cause people to conclude Kenny was a 'low, contemptible and disgusting person'.

That could be tough to defend.

But it will be up to a four-person jury to decide whether that meaning arose and whether Kenny was in fact defamed.

If Kenny were to win, damages of up to $355,000 could then be awarded by the judge, with costs on top.

But there’s far more than that at stake, not least because the Prime Minister has suggested the ABC should not fight the case.


TONY ABBOTT: Well, the point I make is that, government money should be spent sensibly. And defending the indefensible is not a very good way to spend government money and, next time the ABC comes to the government looking for more money, this is the kind of thing that we would want to ask them questions about.

— 2GB, Sydney Live, 6th March, 2014

Tony Abbott’s warning to the ABC ... and the Kenny court decision ... were covered at length in The Australian, with two news articles and a further comment piece all making the point that the ABC should say sorry and drop its defence.

The Oz also quoted Chris Kenny telling Channel 9 that the ABC’s refusal to say sorry had forced him to take action.

As Kenny told Media Watch:


CHRIS KENNY: The ABC had weeks to negotiate an apology but there was no attempt to deal with that, they dug their heels in from the start.

— Chris Kenny, Journalist, 7th March, 2014

Now, Chris Kenny is a journalist and a champion of free speech, so we can’t agree that he was forced to sue.

And it was not just an apology he was after. He also wanted money both for compensation and for legal costs.

But demanding the public broadcaster apologize is a popular theme with his employer, The Australian, and ABC managing director Mark Scott is one of their favourite targets.

YOUR COMMENTS

CDPP attempting to protect Frau and Corruption
From: fionabrown01@hotmail.com
To: stephen.grodzicki@cdpp.gov.au
CC: nuckhley.succar@afp.gov.au
Subject: RE: Considering defeat? [DLM=Sensitive:Legal]
Date: Tue, 11 Mar 2014 17:03:34 +1100

Hi Stephen,
Clearly you wish to help me expose corruption at AFSA so please inform me that you will have all the requested witnesses I requested in court on the 24th March.
Also please supply me with a copy of all ammendments by tomorrow as discussed in court today. I require a copy of these to me sent by email and also by Express post.
Thanking you for your assistance in exposing corrupt practices in Government departments
Fiona Brown

Jane Brockington VCGLR subpoenaed to give evidence she is protecting corrupt employee Adam Toma
 Jane Brockington is stepping aside from the VCGLR on the 24th March 2014 just in time to give evidence on the 28 th March 2014 .

 Clearly there is no integrity to this skank who protects corruption and fraud.