Executive Council of Australian Jewry

Executive Council of Australian Jewry Inc.

TheRepresentative Organisation of Australian Jewry

Level2,80WilliamStreet

Sydney NSW2000

Address allcorrespondence to: POBox1114,EdgecliffNSW2027

Tel(+612)83538500

Fax(+612)93615888

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PRESIDENT

DrDannyLamm

DEPUTYPRESIDENT

JohnSearle

HON.TREASURER

Robert Lissauer

HON. SECRETARY

JillianSegalAM

EXECUTIVEDIRECTOR

PeterWertheim AM

VICEPRESIDENTS

YairMiller(NSW) NinaBassatAM(VIC)

Tony Tate(WA) JasonSteinberg (QLD) NormanSchueler(SA)

DanielAlbert (TAS) Professor Kim Rubenstein(ACT)

IMM.PASTPRESIDENT

RobertM GootAM,SC

CONSTITUENTS

NSWJewishBoardofDeputies

JewishCommunity Council ofVictoriaInc

JewishCommunity Councilof

WesternAustraliaInc

Queensland JewishBoardofDeputies

JewishCommunity Council of SouthAustralia

Hobart HebrewCongregation

ACT JewishCommunityInc

AFFILIATES

Australasian Unionof JewishStudents

Australian FederationofWIZO

B’naiB’rith ofAustralia/NZ CouncilofOrthodoxSynagogues of Australia

Unionfor Progressive Judaism

Federation of JewishAged

CareServices

JewishNational Fund of AustraliaInc

MaccabiAustraliaInc

NationalCouncilofJewishWomen

OBSERVERS

CouncilofProgressiveRabbis Federation of AustralianJewish Ex-ServiceAssociations

NewZealandJewishCouncil

ZionistFederation of Australia

29February2012

Byemail:

TheSecretariat

National Human RightsAction Plan

Attorney-General’s Department

3-5 National Circuit

BARTONACT 2600

Dear Secretariat

Re: Exposure draft of Australia’s new National Human Rights

Action Plan(NHRAP)

TheExecutiveCouncilofAustralian Jewry(ECAJ), the elected representative organisation ofthe Jewish communityinAustralia, presents the followingsubmission on behalf oftheAustralian Jewish community, in response toyourcallforsubmissions.

We commend theAustralian government forthework that hasgone into developingboth theexposuredraft oftheNHRAPand the BaselineStudyon the keyhumanrights issues inAustralia.

Wemakethe following comments in relation to particular items in the draft NHRAPusingthe same item numbers.

Item3– Australia’s International human rights commitments –

Reviewofreservations

Reservation toArticle20of theInternational Covenant on Civil and Political Rights.Article 20 reads:

Article 20

1.Anypropaganda for war shall be prohibited bylaw.

2.Anyadvocacyof national, racial or religious hatred that constitutes incitement to discrimination, hostilityor violence shall be prohibited bylaw.

Australia’sreservation reads:

Article 20

"Australia interprets therights provided for byarticles 19, 21 and 22 as consistent with article 20;accordingly, theCommonwealth and the constituent States, having

legislatedwith respect to the subject matter of thearticle in matters of practical concern in the interest ofpublicorder(ordrepublic), the right is reserved not to introduceanyfurther legislativeprovision on thesematters."

Articles 19, 21 and 22 referred to in the Reservation provide fortherights to freedom of expression and freedom of assemblyand association, and incorporate a“right to impart information and ideas ofallkinds”. However these rightsarespecificallymadesubject to “respect of the rights or reputations of others”and“the protection ofnational securityor of publicorder”.

Australia’s reservation is thus an attemptto “readdown”Article 20 soas to relieveAustralia ofthe obligation to legislategenerallyto prevent“advocacyof national, racial or religious hatred thatconstitutes incitement to discrimination, hostility or violenceshall be prohibited bylaw”. The reservationthus implies that some advocacyof this natureispermissibleon the grounds of freedom of expression.1

Wesubmitthat the reservation isbased on amisconception. TheInternational Covenant does not contemplatethepossibilitythat the actualincitement of hatredcanever bejustified as an exercise of freedomof expression.Statements in the public domain which (i) advocate national, racial orreligious hatred and(ii) constitute incitement to discrimination, hostilityor violence, areinherentlyharmful in two respects. Such statements constitute, at a minimum,

aform of harassment ofmembers ofthegroups who aretargetedand thus underminethe sense of safetyand securitywith which theygoabout their dailylives.Further, in a multicultural societystatements of this kind erodethe social gluethat is essential forthe communityto function harmoniouslyand productively.

Ourviewis that thepresent civilremedies in Australia areinadequate andinappropriate for dealing with determinedracist agitators, and that theGovernment should considersuitable criminal sanctions forintentional racial incitement and forserious harassing and intimidating behaviour on thegroundof “race”, whether ornotsuchbehaviouramounts to incitement ofa specific act of violence. In our submission theprovisions ofChapterXIofthe Criminal

CodeofWestern Australia (racistharassment andincitement toracial hatred)deal with the matterof serious and intentional incitement to racial hatred in anappropriate and effective manner. Substantiallysimilarprovisions should be enacted forAustralia asawholebythe Federal Parliament.

Ontheotherhand, itwillbe recognised that the prohibition ofoffensive behaviour on the groundof religious beliefpresents moredifficultproblems in reconcilingcompetingrights.

1 Hencethe reference toArticle 19 inthe reservation.

Certainlytheright to engagein civilised debateabout religion is central to ourdemocracy, and anythingin thenatureof blasphemylawswould be intolerable.

Anti-vilification caselawhas defined“race”to include ethno-religious identity. Thetest articulated bythe Court of Appeal in NewZealand(Richmond P, Woodhouse and Richardson JJ) in King-Ansell vPolice[1979]2 NZLR 531 at 543, acriminal law case, has stood the test of time.

'.. . a group is identifiableinterms of its ethnic origins if itis a segment of the populationdistinguished fromothers by a sufficient combinationof shared customs, beliefs, traditions and characteristics derived froma commonor presumed commonpast,evenif notdrawnfrom what inbiological termsis a commonracial stock. Itis that combinationwhichgives theman historically determined socialidentityintheir owneyes and inthe eyes of those outsidethe group, theyhavea distinct social identitybased not simply on group cohesionand solidarity butalso ontheir belief as to their historical antecedents.'

That last passageadmirablycaptures the differencebetweenaracefor anti-discrimination lawpurposes anda racein the biological sense.Thesepassages werecitedapprovinglyand followed bythe HouseofLords inMandlavDowell Lee (1983)2 AC 548and bytheFederal Court ofAustralia in Jones v ScullyFCA 1080 (2September 2002) at paras110-113. and the FullFederal Court ofAustraliainMiller vWertheim[2002]FCAFC 156) at paras 13-14. A groupof people whosesole commonalityof identityis a shared religious faith would not

meet the test articulated byRichardson P.

Toleranceof public expressions of hatred that meet the criteria of Article20 undermines and ultimatelynegates thesignificant effort and investment that the Federalgovernment has been makingin thedevelopment of a National Anti-Racismstrategyand in theimplementation of its social inclusion policies. The reservation should be withdrawn in its entirety.

Reservation to Article 4aof theInternational Convention on the Elimination of all

Forms of Racial Discrimination (ICERD). Article 4areads:

“States Parties condemn all propaganda and allorganizations which arebasedon ideas or theories of superiority of oneraceor group ofpersons ofone colour or ethnicorigin, or which attempt to justifyor promote racial hatred and discrimination in any form, and undertaketo adoptimmediateand positivemeasures designed to eradicateallincitement to, or acts of, suchdiscrimination and, to this end, with dueregard to the principles embodied in theUniversalDeclaration ofHuman Rights and the rights expressly setforth in article 5 of this Convention, interalia:

(a) Shalldeclare an offencepunishable bylawalldissemination of ideas based on racial superiority or hatred, incitement to racialdiscrimination, as wellas all actsof violenceor incitement to such acts against any raceor group ofpersons of another colour or ethnic

origin, and also the provision of any assistanceto racistactivities, including the financing thereof.”

Australia’sreservation relevantlyreads:

“thatAustralia is not atpresent in a position specifically to treat as offences all thematters covered byarticle4(a) of theConvention”.

Australia’s RacialDiscrimination Act 1975(Cth) (‘theRDA’) fails to criminalise racial vilification, as required byArticle4(a) oftheICERD, and for this failureAustraliahas relied upon its reservation to that Article.

TheICERD Committeehas forsomeyears recommended that Australiawithdraw its reservation and enact legislation to give fulleffectto Article 4(a) of theICERD, especially serious acts of racial hatred, incitement to such acts and

incitement to racial hatred.2

TheECAJendorses the recommendation andconcurs with the Committee’s reasons and supports thesubmissionsconcerningArticle4 oftheICERDwhich weremadeto the government in June2010 bythe National Association of CommunityLegalCentres andthe Human Rights ResourceCentre, and endorsed bymorethan 100 NGO’s across Australia.

Australia currentlylacksanykind ofcoherent legal regimeto deal with cyber racism. Under the present law3, even ifacourt ortribunal makesan order or declaration based on a finding that the publication ofonline content is in breachof anyFederal or Statelaw (includingPart IIAof theRDA), that order ordeclaration doesnotenliven anyof thepowers in relation to suchmaterial that theAustralian Communications and MediaAuthority(ACMA) currently

possesses in relation to material classifiedas ‘RC’bythe Classification Board. Those

powers include thepower to issuetake-down notices toInternet ServiceProviders (ISPs) and should be extended to applyto anyonline content thepublication ofwhichis in breach of the law.

Inrespect of cyber hatecontent that is hosted byanISPlocated outsideAustraliathe Government has indicated itwillintroduce compulsoryinternet filteringto block overseas sites containingcriminal content.4 However it remains unclearas to whether this will also apply,as webelieveitshould, to websitespromotingracially-motivated violenceorracial hatred.

Thecriminalisation of acts of a racistand xenophobic nature committed throughcomputer networks, includingtheproduction, offering, dissemination orother formsofdistribution of materials or messages with such content through computer networks isnot a matter that can

2 CERDCommittee,ConcludingObservationsby the Committee ontheEliminationofRacialDiscrimination: Australia,[14]CERD/C/304/Add.101,(April2000);CERD Committee,ConcludingObservations by the Committeeonthe EliminationofRacialDiscrimination:Australia,[12],CERD/C/AUS/CO/14,(14April

2005).

3 See BroadcastingServices Act1992(Cth).

4 Green Lightfor InternetFilterPlans(2009)ABC News <

at6 May2010

beaddressed effectivelybyanyStateactingalone. The emergenceof theInternet and social mediaoperatingon aglobal scale provides a simple and powerful means tosupport thewide dissemination ofideas ofracismand xenophobiawhich cannot becontained within the borders ofanyState.In order to investigate and prosecute such behaviour, international co- operation is vital.

Australia’s NHRAP should thereforeincludeaccession to theAdditionalProtocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racistand xenophobic nature committed through computer systems (ETS No. 189). Accordingto the ExplanatoryReport to theProtocol:

Thepurpose of this Protocol is twofold:firstly, harmonising substantive criminal law in thefight against racism and xenophobia on theInternet and, secondly, improving internationalco-operation in this area. This kindof harmonisation alleviates the fight against such crimes on thenational and on theinternationallevel. Corresponding offences in domesticlaws mayprevent misuse of computer systems fora racistpurpose by[States]Parties whoselaws in this area arelesswelldefined. As a consequence, the exchangeof usefulcommon experiences in thepractical handling ofcases maybe enhanced too. International co-operation(especially extradition and mutual legal assistance)is facilitated,e.g. regarding requirements ofdouble criminality.5

Australia’s laws in this area arenot merely‘less welldefined’but do notspecificallyaddress the problem ofcyber racism at all. Accession to theAdditional Protocol would send an unmistakable signalthatAustraliaintends to treatthis burgeoningproblemwith the seriousness it deserves.

;

Item17. LegalProtections

“TheAustralian Government will ensurethatthe Australian Human RightsCommission is

empowered and funded to resolve complaints of discrimination, includingensuring itis accessible and equitableto all.”

In BrandyvHREOC (1994-1995)183 CLR 295, theHigh Court held that certain sections of the RDAwhich havesincebeen repealed purported to vest judicial powerin theHuman Rightsand Equal OpportunityCommission6,contraryto ChapterIIIoftheConstitution, and hencewereinvalid. It isthereforedoubtful that theAustralian Human Rights Commission can lawfullybeempowered to “resolve” complaints of discrimination bywayof abinding determination. Anyresolution process would haveto be bywayof formalorinformal mediation.

Inanyevent,wewould urgethegovernment to ensurethat anyexpansion of thedispute resolution powers andresources of theAustralianHuman RightsCommission be expressed to extend also to complaints of racial vilification.

6 The predecessor bodyoftheAustralianHumanRights Commission.

Item18. LegalProtections

“TheAustralian Government will develop legislation which willconsolidate Commonwealth

anti-discrimination lawsto removeunnecessary regulatory overlap, address inconsistencies across lawsand makethe systemmoreuser-friendly. Itwill also considerthe design of the complianceregimeand complaints processes.”

Wewould caution against anyprogram to addressinconsistencies across State andFederal anti-vilification laws that leads to a"lowest common denominator"outcome. Wetrust that the commitment to makinganti-discrimination laws more “user-friendly”,which was set out in theAttorney-General’s announcement launchingAustralia’s Human Rights Framework on

21April2010, willlead to enhanced, and not diluted, protections under thelaw.

Item20. LegalProtections

“TheVictorian Government will implement thePrejudiceMotivated CrimeStrategyto

increase understanding of prejudicemotivatedcrime, reducethesecrimetypes and increase community.”

Thisis a welcome and long-overdue reform. It is essential that anyPrejudiceMotivated CrimeStrategyincludeaprogram fortraininglawenforcement personnel not onlyto identifyand understand prejudicemotivated crimebut also to recordthe prejudice motivation accuratelywhen enteringparticulars ofa crime(or allegedcrime) on anylaw enforcement agencydatabase. Without complete and accuraterecording,meaningful statistical analysisof thenature andextent ofprejudicemotivated crimeinAustraliawill continueto be unavailableto government andacademic researchers.

Items 21, 22 and 24. Aus tralia’s Human Rights Framework

“TheAustralian Government will prioritise human rights education by:

providing $2 million over fouryears to non-government organisations (NGOs)for the development and deliveryof community education and engagement programs to promote agreater understanding ofhuman rights

investing $3.8 million inan education and training packagefor theCommonwealth publicsector, including development ofguidancematerials forpublicsector policy development and implementation ofGovernmentprograms

providing $6.6 million over fouryears to the Australian Human Rights Commission to enableitto expand its community education roleon human rights and to provide information and supportfor human rights education programs (including through development ofa new human rights web portal), and

enhancing support for human rights education in primaryand secondaryschools by:

continuing to workwithStates and Territories and the Australian Curriculum, Assessment and Reporting Authority to includehuman rights and principles across theAustralian Curriculum to ensurethathuman rightsforms a partof

studentlearning, and

providing funding to theNational CommitteeforHuman Rights Education to hold two seminarson human rights education in schools.

“TheAustralian Government has overseen the passage of legislation to:

establish a Parliamentary JointCommitteeon Human Rights which willprovide greater scrutinyof legislation for compliancewith Australia’s international human rights obligations under thesevencore UN humanrights treaties to whichAustralia is a party

require all Bills and disallowable legislativeinstruments to beaccompaniedbya statement assessing itscompatibility withthe rights in theseven coreUN human rights treaties to which Australia is a party, and

appointthe President of the Australian Human Rights Commission as a permanent member of theAdministrativeReview Council.”

“TheAustralian Government will review legislation, policies and practices forcompliance with the seven core UN human rights treaties to which Australia is a party,commencing with legislation administeredbythe Attorney-General’s Department.”

Ourcommunitywelcomes each of theseinitiatives, especiallythe enhancedsupport for human rights education in primaryand secondaryschools. Ideallyhuman rights education should beintegrated withformal and informal programs directedat counteringracismand other forms of prejudice.

Item37. Counterterrorism

“TheAustralian Government will continue to ensure that the Independent National Security

Legislation Monitor has thepower to review thepractical operation of Australia’s counter-terrorism and national securitylegislationon an ongoing basis. TheMonitor’s reports will be presented to Parliament in accordancewith theIndependentNational SecurityLegislation Monitor Act 2010. The IGISand the PJCIS also provide additional oversight mechanisms which complement thework of theMonitor.”

Ourcommunitymadeadetailed submission to thegovernment in 2010 about theinadequacy ofthe current national securitylegislation.7 Ourview remains thattherelevant sections of Subdivision C("Urging Violence") ofDivision 80 of theCommonwealth CriminalCodeare unlikelyto be atallworkable because:

the elements of the proposed offences havebeen formulated so restrictivelythat it

willbe effectivelyimpossible foraprosecutor toprovethose elements to the criminal standard in anyparticularcase; and

the availabilityof defences under section 80.3 to charges under thosesections is completelymisconceived.

7 2.

Accordingly, regularmonitoringof thelegislationfor effectiveness will beessential.

Items 63 to 99. Thehumanrights experienceofAboriginal andTorresStrait Islanderpeoples

Ourcommunitysupportsthe rangeof plans proposed in items 63 to 99, especiallyplans for the promotion ofself-determination ofindigenous Australians; thedevelopment of effective processes of consultation between themand the Australian government;thestrengtheningof nativetitle arrangements; empowerment of indigenous women; constitutional recognition of indigenous Australians; removal ofdiscrimination;closingthegap in health, housing, work and education; and improvingcommunitysafety, reducingthe incidenceofcrime and buildingcapacityin indigenouscommunities. It is essential in ourviewthatthe relevant plans bedeveloped,refined and implemented in partnership with theNational Congress of Australia’s First Peoples.

Items 100 to 120. Thehumanrights experienceofwomen

Ourcommunitysupportsthe rangeof plans proposed in items 100to 120 especiallyplans to combat violenceagainstwomen. It is essential in ourviewthatthe relevantplans be developed, refinedand implemented in partnership with women and women’s groups and otherorganisations with the expertise and experiencenecessarytoaddress theseissues appropriately.

Items 121 to 129. Thehumanrights ofchildrenandyoung people

Ourcommunitysupportsthe rangeof plans proposed in items 121 to 129 especiallyplans to combat violenceagainstchildren and to implement programs to prevent suicide and self- harm. It is essential in ourviewthatthe relevantplans bedeveloped,refined and implemented in partnership with organisations thathavethe expertise andexperience necessaryto address theseissues appropriately.

Items 130 to 137. Thehumanrights ofolderpeople

Ourcommunitysupportsthe rangeof plans proposed in items 130 to 137 especiallyplans to combat violenceand other forms ofabuseagainstthe elderly, includingfinancial exploitation, and to implementprograms to prevent thesephenomena. It isessential in our viewthat the relevant plans bedeveloped,refinedand implemented in partnership with representative and otherorganisations that havethe expertise and experiencenecessaryto address theseissuesappropriately.

Items 138 to 146. Thehumanrights ofgay, lesbian, bisexual andsex and/ or genderdiversepeople

Ourcommunitysupportsthe rangeof plans proposed in items 138 to 146 especiallyplans to combat violenceand other forms ofabuse and discrimination againstmembers ofthis group, and to counter-act forms ofpublicvilification that aredirectedagainstthem. Our submissions concerningtheneed for strongandeffectivelegislation againstracial

vilification applyalso tothe need for strongand effectivelegislation against vilification on the basisof sexual orientation or identity. Thereis also aneed to develop an action plan to ensuretheadequacyof counsellingand other services formembers ofthis groupwho are strugglingwith issues ofgender identity, sexual orientation and familyandsocial acceptance. It is essential in ourviewthatthe relevant plans bedeveloped,refinedand implemented in partnership with representativeand otherorganisations thathavethe expertise and experiencenecessaryto address theseissues appropriately.

Items 147 to 153. Thehumanrights of people at riskofor experiencing homelessness

Ourcommunitysupportsthe rangeof plans proposed in items 147 to 153 especiallyplans to combat violenceand other forms ofabuse and discrimination againstmembers ofthis group, and to ensurethatadequate public housingis madeavailable for people whowould

otherwise experiencehomelessness.

Items 154 to 173. Thehumanrights of people with disability

Ourcommunitysupportsthe rangeof plans proposed in items 154 to 173 to remove areas of discrimination, especiallyin employment andaccess to publicservices andfacilities,and to combat exploitation of and violenceagainstpeople with disability. Wehavehad the benefit ofseeingthe detailed submission prepared byPeople With DisabilityAustraliaIncorporated and respectfullyendorseits comments and recommendations. It is essential in ourviewthat the relevant plans bedeveloped, refined andimplemented in partnership with representative and otherorganisations that havetheexpertise and experiencenecessaryto address these issues appropriately, includingPeople With DisabilityAustraliaIncorporated.

Items 174 to 178. Thehumanrights ofcarers

Ourcommunitysupportsthe rangeof plans proposed in items 174 to 178, especiallyplans to provide economicsecurityto carers and recognition and respect forthework that theydo which is often unpaid and would otherwisehaveto be funded out of thepublic revenue. It is essential in our view thatthe relevant plans bedeveloped, refined and implemented in partnership with representative and otherorganisations that havethe expertise and

experiencenecessaryto address theseissues appropriately.

Items 188 to 219. Thehumanrights ofrefugees andasylumseekers

Ourcommunityhas madenumerous submissions to the government in recentyears in support ofthe human rights of refugees andasylum seekers andforamulticultural Australia.8 We reaffirm theviews wehaveexpressed on theseissues. Wewelcomethe seriousness with which thegovernment hasaddressed theseissues in thedraft NHRAP but reiteratethe concerns wehavepreviouslyexpressed about thenecessityforAustralia, as a