F+E 2019 panel 3: Freedom To vs Freedom From: Balancing competing rights


– Now we have our third panel,
which is so far advanced and so ahead of the conversation
and indeed the schedule they’ve already seated
themselves on the panel. Which is excellent. The panel is “Freedom
To versus Freedom From” and of course, the focus this
year is on a range of freedoms some of which have already come up today. The freedom of the
press, freedom of speech freedom of religion. And there have been many
questions around all these things that have been swirling around this year with a full-out controversy which is not about to
go away any day soon. It’s also questions around
balancing national security and privacy with some of our
most fundamental freedoms. So to host this discussion on some of these pressing
human rights issues of our time is constitutional law expert, Scientia. Is that how you pronounce it?
– Close enough. – No, tell me, I need to
get these things right. – [George] ‘Scientia’. – Oh, ‘Scientia’, that sounds Latin. Scientia Professor George Williams. AO, Dean of the Faculty of Law at the University of New South Wales and let’s give him a welcoming hand. (audience applauding)
He’s done so much work in this area for so many years. And he’s joined by award-winning human rights advocate and lawyer and Drum regular panelist,
who I’m extremely fond of for how incredibly incisive
she is always, Nyadol Nyuon welcome to you. (audience applauding) And former Age Discrimination Commission and Disability Commissioner
at the Human Rights Commission and many many other things including former formidable
female cabinet minister and I hate to keep saying it. Actually I don’t, I like to keep saying it she too is a Drum regular
and I love her dearly for it. And sorry, I almost skipped
you at the end there. Chair of the board of the
Human Rights Law Center and Deputy Chancellor at
the University of Adelaide the very distinguished and accomplished Honourable Catherine Branson AC QC. (audience applauding) Over to you George. – Thanks very much Julia. This is one of those hard sessions for which there are no easy answers. How we weigh up and how
we deal with conflicts between different human rights. Particularly in a country like Australia which is unique in not having any form of national Bill of Rights
or Human Rights Act. So, we’re gonna ask those questions how should we as a society
resolve these differences? How do we do it now? How can we do it better? And how do we do so with a view to some really pertinent
examples in our community today. So, I’m gonna ask each of our panelists just to start for a few minutes to talk a little bit
from their perspective and their experience. I’ll then ask some questions and then I’m looking forward to seeing what’s on the Slido. So get your questions ready and I’ll try and get as many of those as
possible, as well to our panel. Susan, would you like to kick us off? – I would, thanks George. Nyadol, Cathy. Friends, I would like to
start by acknowledging that we’re meeting on the land
of the Gadigal of the Eora and I express my respect for their Elders past present and emerging and I have to say, I always
get a little bit of thrill talking about the Gadigal because I was born in
Maroubra and live in Coogee. So I’m a bit of a Gadigal
adoptee person myself. Now, the way we’ve protected rights in the absence of a Human Rights Act which charter is George and I know since we spent a few years of our life unsuccessfully trying to achieve them. It’s really, well one of
the main ways is through our four pieces of
anti-discrimination legislation. The first was the Racial
Discrimination Act 1975 The second was the Sex
Discrimination Act 1984, my legacy. The next was the Disability
Discrimination Act 1992 and then we had the Age
Discrimination Act in 2004. They are the four pieces. And those, if people
wanted to bring complaints that their rights under
any of those were violated they could do so and sometimes they did them intersectionaly. Like an older lady of say Indian Heritage might have a a race
complaint in employment that she might all also feel
it was race discrimination and so those matters could be dealt with and have been through the excellent complaints handling mechanism of the Human Rights Commission. But now we are contemplating a fifth anti-discrimination law. An anti-religious discrimination bill a draft bill at this stage. Will that fit in that
interdisciplinary way with the others, as I’ve
described the first four perhaps not. Now, I’d like to do a little
bit of ancient history and talk about how we
ended up balancing rights in the Sex Discrimination Act 1984. Now the purpose of that act
as you probably all know and some of you probably
practice, was to make unlawful discrimination on the basis
of sex, marital status or pregnancy, in those
areas generally protected by our anti-discrimination laws education, goods and
services and so on and so banking, finance, so on and so forth. We started from the position that we wanted to outlaw
discrimination against women although it was gender discrimination. And there were all areas that affected the capacity of a woman to
have economic independence. To have a job, to have
training, to have education to get promotion, to rent accommodation. If they happen to have had their job get a mortgage to buy a house. None of those things
were available to women or did not have to be available to women. So it started like that. We didn’t start with the idea of having exceptions or exemptions. We just said, “No, there
should not be discrimination “in these areas.” As we proceeded through the debate which I can tell, some
of you will remember but a lot of you probably
weren’t even born was a very contentious
debate, extremely contentious. Opposed by conservative forces all around and really opposed on the basis that if women got these protections who knows where the world would end? They’d be taking our jobs, you know they’d be earning more than us children would be delinquents,
all of that, that all went on sounds hilarious now, it was
pretty horrible at the time. So, in the course of that very
long and contentious debate I realized having the carriage of the bill that we had to get the
bill through the Senate. We had to accommodate amendments and the most significant one brought to us by the opposition,
was then the Liberal Party was that we needed to give an exemption to church based schools
so that they could employ teachers of their faith in those schools without drawing upon themselves a complaint of discrimination. Now, we ultimately decided
that was quite reasonable and that exemption went in. At the same time it was understood too that church based schools,
which were established and funded by the Commonwealth and state for the purpose of providing children with the religious education
of the parents choice. They could give enrollment priority to children from that faith, okay. Now, you might be interested to know that the main diversion from
Christian values and behavior that the church school
spokespeople were worried about were, unmarried mothers, divorced people or a male or female
teacher living with someone they weren’t married to. They were the main moral
hazards of the time. How times change. Anyway, when we introduced
those exemptions we saw them as actually quite reasonable. Yes, if you’re running a church
school, the teachers yeah. We saw them as reasonable but
we also saw them as limited a limited and specific,
not a general right for people of religious,
from people from churches to decide they didn’t have to abide by any discrimination law. Now we are in a different
climate at the moment but that was how we got to have that law with those exemptions. So I must say, that Sex Discrimination Act has been amended many times
but the exemptions have stayed. – [George] Thank You Susan, Cathy. – Thanks, George I joined
with Susan in acknowledging that we’re on the land
of the Gadigal people as they are a nation and
pay my respects to them and say how pleased I am to see a number of First Nations people with us today. So only two ideas I
thought I’d float early. The first is that it seems to me that respect for human rights is actually a, it’s an attitude of mind. Laws are helpful, without laws attitudes are difficult to change. I mean, remembering Susan’s
very important legislation people say laws don’t
change attitudes, they do. I mean, that law dramatically changed the attitude of Australians
towards the rights of women. But in reality, if
people’s minds don’t accept you know, that a fair go for everybody the sort of a egalitarian ideas that are so basic to early Australia and that we’re losing and
not fundamentally important. That it’s not fundamentally important that the vulnerable are
protected, you know? That you don’t have children
abused in places of detention that our indigenous youths
can’t get proper education things of this kind, then we’ve
lost touch with human rights you know, the respect for
rights is the attitude you bring to what you think
makes your society a good is a good one. So, laws are important, I
don’t want to suggest otherwise but I think, what we
aim for in the long run is an Australian people for
whom the sense of what is fair what is just, what’s egalitarian
is what we’re fighting for. And it’s in that context that I say being one of those people who somewhat scarred by the last
consultation around human rights and may I interpolate that
I want to congratulate Ros on starting this new conversation which I think is enormously important. At the end of the day
what I thought went wrong with the last consultation, was ultimately and I can say it because
I am one of these people the views of lawyers and
the views of politicians most of whom were lawyers, were privileged over the views of other people. I think, you know, an event like today where we’re hearing from
a wide range of people is the ways to start
addressing that problem. It seems to me wondering
whether unelected judges will end up being too powerful
and things of that kind. It’s a bit like saying,
whatever code you follow I don’t want my kids playing football because I’m worried about
the quality of the umpire. I mean, it looks silly in that context it was silly in the human rights context. Human rights are important not because protection
for them empowers judges but because it involves the elderly being able to say, “I’ve got
a case for decent treatment “in my health care system.” It enables a kid to say, “I’ve
got a right to go to a school “where the facilities are decent.” You know, it enables a
sick person in the country to say, you know, “I should have access “to the sort of health care I need. “That means that I can
live as as long as somebody “who lives in the city.” Those are the things that are important and I think one of the importance is to find ways that
people can hear from those who are the ones that need the protections that human rights might provide. One of the great privileges I experienced when I was president of the Australian Human Rights Commission was that, in that period
of the consultation led by Father Frank Brennan I had an excuse to go out and
speak to all manner of people. I spoke to people of different
faiths, different ethnicities I spoke to victims of violence. You know, I spoke to
people who were homeless I spoke to people who’d
just got out of prison I spoke to a wide range of people and it significantly shifted my view about whether Australia needed
human rights protections. They needed them because too many people didn’t take for granted
that their privileges were that they were privileged,
they were not a right and that were truly vulnerable
people in our country that need a fairer go than
they’re getting, thank you. – [George] Thank you, Nyadol. – Well, I too would like to start by acknowledging the
traditional owners of this land and pay my respects to their
Elders past and present and also acknowledge
the women on this panel and not to say it as a throwaway comment. You know, you are both
really accomplished women and I believe that as a young woman if I can consider myself such that I have benefited from
the work that you’ve done and the path that you’ve made. So, I want to acknowledge that to you. (audience clapping)
– How gracious. – [Susan] Thank you. I’ve entered I suppose
this debate about right and balancing right from two perspective. The first is to look at it more on the impact it has on
those that are on the edges of those conversation
and the second part of it is to look at the laws,
the discriminatory law but also the conversations we have not in isolation, but
how they also connect to the current political
environment we have. Some historical understanding of both racism and colonialism
and how those deeper issues plays a role when we are talking
about rights and freedoms. So I’ll start, I’ll go back
to talking about the impact. During the debate, the
same-sex marriage debate I remember going through Twitter and finding someone tweeted and said that, I think there was
a back-and-forth going about the importance of having that debate and the person who wrote the tweet said, “I was a pallbearer for one person “who could not take in
any more of this debate.” And it shows that sometimes these general debates that we
have about people’s freedoms and people’s rights to say certain things have a tremendous impact
on other people’s lives. And so we cannot just
see laws in isolation as only protecting certain
right to certain privileges but they are those, particularly those who are in minority groups that don’t have the same platform I suppose to engage in the
debate in the first place they don’t have the political capital to be able to challenge and push back. So the platform starts off “the marketplace” of ideas
start off already against them. And so this became quite apparent when we were, launched
a campaign while back to have the Australian government stop a guy called Gavin McGuinness from coming to Australia. Gavin McGuinness had
started an organisation called the Proud Boys in the United State and they’d engage in extensive violence to the point that in the town of Portland there were considerations
of introducing laws to deal with some of the violence that the Proud Boys has brought in. He had said things that his groups was there to punch people, choke them and use really aggressive
language and describe his group as in a nutshell, they will kill you. He was misogynistic, he was racist based on the content of
what he has produced. And a group of us worked together to try and set a petition and
to try and get the minister at the time, Minister Coleman I’m not sure whether he’s there,
he’s still the minister now to try and revoke his visa
from coming to Australia. And so the first challenge
we face of course was the fact that this was
cast as a free speech issue. He has a right to free speech and therefore we should be, as a society we should be willing to
listen to ideas from people. I remember saying that this was actually not about free speech, this
was more about hate speech and the incitement of violence
and trying to insist that to insist on such a distinction
was not anti free speech. He was actually for free speech because part of what it did is that it made it clear to
us, at least as a society where we draw the line when
things crossed the bounds. And it was quite a hard argument to make because Australia is a liberal democracy and even though we don’t have you know, a charter of rights we still fundamentally
believes in these freedoms and I think a lot of
us share those beliefs and I do too, I am happy
for someone to not like me for the color of my, not happy maybe but I’m okay with someone not liking me for the color of my
skin, they don’t have to. But when that person wants
to go to public and campaign and get the political wheels moving so that such legislation of that or his ideas become public policy then I think that’s the
point where we begin to have a serious conversation about where that debates would end. And some people might think that, well that’s actually extreme. You just have to look at
the United States currently to see that things that seems
extreme just two weeks ago don’t seem extreme after a Tweet by the president of the
United States, unfortunately. And that indeed policies that we thinks will never be initiated like the separations of
children from their parents in the United State can
indeed be put into place and in Australia we have our
own draconian laws against that when it comes to settlement of
refugees and asylum-seekers. So that was one of the main,
at least in my experience that was one of the areas where
it became quite clear to me that the debate about free
speech really sometimes doesn’t take into account that those the people that are much more
impacted by the speech itself. Now, when it comes to hate
speech and things like racism beside the offense that you would take which has been one of the main, I suppose argument advanced by people who support a much more broader
interpretation of free speech. Is that, it’s not
offence that is the issue is racism does have health impact real health impact on the lives of people and in fact, I think it was
doctors in the United States recently released a report talking about the impact of racism the long-term impact of racism and racist policies on children. So I think part of the
debate that we have here is to try and construct the debate in a much more broader sense to say, it’s not about
offence it’s about health and public health sometimes. There’s also the second issue that arise when speech is sort of, put as
if it’s just about offences. You don’t take into account
the serious physical violence that sometimes arises as a result of what has been termed
controversial speakers coming to Australia. And there have been a number
of them coming to Australia and unfortunately, which
we’ll come to my second point I’ll try and wrap up quickly. Which would connect the different part. We’ve had media, certain media outlets that are providing them
with significant platforms to spread their ideas particularly when some of these people have actually been banned from countries other countries, western
countries like Australia. And one incident resulted in to, you know a group of young people being bashed after an event had concluded and taking up significant
police resources. But besides I suppose the impact another frustration I’ve had is that people tend to seem to take the free speech debate in an isolated view but what I have discovered,
at least in my experience is that there are levels of links between people like McGuinness, the media the political environment that we are in and the laws themselves. So with McGuinness, one
of the things he did was to, of course insist
that this was just speech and it was just comedy. And then of course he
got significant backing from certain media outlets
that then said that you know, we should be allowed
to have speech like this and debates like this in Australia even though at that stage we were saying this is not in fact, you
know, a free speech issue is a hate speech issue and
there was significant support even from a former politician who said that McGuinness
should be allowed to come in. It also took significant pressure to even convince the department,
immigration department that this was someone
that was actually a danger to the Australian society. We had over 80,000 people sign a petition we constantly were calling his office to try and get a reply from them. Eventually the visa was canceled, luckily but it took significant
pressure to get that. And in all that, I remember a quote from Gavin McGuinness himself where he said, “It is our job
to beat the hell out of people “and for the authority
to turn a blind eye.” It made me realize that
people like McGuinness really understood something that maybe the broader
community didn’t understand. That they had the tactical backing even if it wasn’t intentional of the way of certain institutions and certain political powers. They knew that in certain
areas of the media they will get the backing and they knew that even in the political sphere itself there will be some people
that will turn a blind eye to what they were saying. And so that clearly, to
me demonstrated the links and the gaps in which
people like McGuinness could get away with what they said. Because I can assure you in this room and I can say this with
tremendous confidence. Had the things that Gavin McGuinness say been said by a brown Muslim man I would have not need an 80,000 petition to not get him to come here and that says something. (audience applauding) – So before I go to the
audience questions on Slido and please vote now if
you’d like to indicate which questions you’d like to hear. A few questions for the panel. Firstly Susan, if we look
at how Australia resolve these issues of competing rights and these are perennial
issues that go across decades. A primary answer has been
anti-discrimination legislation. So the problem of the rights of women we’ve got the Sex Discrimination Act. The problem of religious institutions and religious freedom, the answer it seems is a Religious Discrimination Act. And there’s something quite
striking about that in Australia which is very different to the experience of other countries. I was intrigued in your remarks you suggested perhaps
there’s not room for a fifth that perhaps, at least in this area that, is it because we’ve
reached the end of the road with anti-discrimination
legislation being the solution or, I mean, how do you
see the path forward now given the body of law that
we have built in this area? – Well, I think, of course
there is room for a fifth. The distinction I draw between the draft religious discrimination bill as we have seen it and
the four already enacted is that under those four,
you can interact with them. I gave the example, a woman,
an older woman could bring a complaint in her employment that might have partly to do with her age partly her ethnicity. She may have a disability,
so they can work together as well as working separately. But with the religious freedom. Religious freedom and
religious discrimination ideas bottom of the three bills that the government’s
put out in draft form you will get a conflict
so that the issue has been a number of church schools for example don’t want to have to well, they don’t wanna have
gay teachers or gay students but they don’t even seem to
want a recognition that– – [George] Because it throws
up on intractable problems– – It throws up conflicts
that the other four don’t you know, you can be a
person with disability and a woman and feel that
your rights have been violated through some combination of those things but if you are a gay person teaching in a school or even working for a church based charity. It seems that some of the
advocates for the fifth strand are saying, you don’t have any rights and I think it makes it a
different kind of provision. It could be more limited and I know the Human Rights Commission is put in a very detailed
submission on the draft bills and made some very sensible
proposed amendments. Which would take away some of
these irreconcilable conflicts but the other thing, I do have to say is that now that we’ve got to the stage of looking at protecting broader freedoms and we’ve got the freedom of speech thing the freedom of the press, all that going. We would really best achieve a balance of all of our fundamental
rights by a charter or a national Human Rights Act. So that, I feel in that sense the time now has really come. But it would be possible to have that fifth piece of legislation but it needs to be drafted
so that it’s not actually an irreconcilable
conflict with the others. – Now look, you’ve convinced me about the need for charter rights, so– – That’s a first. (laughs) – So Cathy, my question’s
about how we resolve these differences in Australia
between competing rights and anti-discrimination legislation is of course one way we do so. I’m wondering if you can tell
us how otherwise institutions are able to resolve these differences. And whether it’s an
adequate way of ensuring that where there’s a conflict
between press freedom and national security or
indeed any other list of things we might come up with that
we have the mechanisms to actually get a just and fair outcome? – Look, it is always a difficult question and I think in a democratic
country like Australia ultimately democratically
elected representatives are going to have to
debate those balances out. But you would hope, you know,
they would inform themselves by speaking, you know, in very
thoughtful and receptive ways to the people who will be
most impacted by the decisions that they’re making and
I would think for myself that where we identify
rights that are fundamental because they’re inherent to
the dignity of individuals and their capacity to
live free and equal lives that any restrictions on those would be the narrowest possible, you know one right really can’t be
privileged over another except in the narrowest of circumstances where it’s required. So, of course I do accept
that something like a faith-based organisation
where there are beliefs that are fundamental to that faith people of course can
believe whatever they wish. It’s only when they come into
making public demonstrations of their beliefs that the
public interest arises. But I think it should
be as narrow as possible and the second is that
they should be integrity in the system, so I
raised the church school because it’s one that’s always raised as the issue of debate. If a school were to say, “Look, it’s fundamental to the school “that we’re running that people share “the tenets of our faith.” Then I think they should be open to investigation about
whether that’s right. Whether they are doing that. So if you had a faith based school that said we want all
our teachers to adhere to the tenets of our faith. But say it was a Christian school but you discovered that the
science master was Jewish because there was an experience that high marks are achieved by having the particular science master. Then immediately they’ve demonstrated that it’s not fundamental to
the running of their school that everybody shared the
tenets of their faith. So I think there ought to be some if you claim that sort of immunity then I think there should
be some capacity to test whether that’s genuinely the
way you’re running your school or if it’s only what you
say when it suits you that you’re willing to break the rules because you, for example,
can then get kids with the highest maths marks
or you can run a rugby team that wins all of the, you
know, all of the matches if you bring in someone with
an entirely different faith to coach the rugby team. But, you know, I think my broad principal is one of coherence,
narrowness of exceptions but listening very much to the communities that are involved. – Thank you and Nyadol you talked about people on the edges of these conversations and often how they’re not involved in resolving these questions. Do you have any ideas for
ways that could happen. How in Australia could we actually ensure that the people who are most affected by the debate about vilification laws and freedom of speech for example. How can they have a say to
make sure that they’re part of actually resolving solutions about those competing interests? – I think in Australia we
continuously have conversations about diversity in the media,
diversity in our politics but I’m not sure how far
we’re moving with that. I think we’re making some
progress in certain areas when it comes to
diversity, gender diversity and maybe that’s an easier
conversation to have but I think there is
significantly more to be done when it comes to racial
diversity in certain places and maybe the reasons why
we, at least in my experience we’re not very comfortable with the R-word is because we haven’t yet resolved issues with our indigenous community
and so talking about race raises really difficult conversations for the nature of our politic itself. I mean, we’re talking about
whether indigenous people should even be recognized
in the Constitution and I think that’s why people try to move around the
conversation about race and most of the time when
you go to these spaces and they talk about diversity they’re generally talking
about gender diversity. And so, it’s harder for even
the more marginalised people to get a chance to speak
and it makes it difficult when the, I suppose the
institutions or the mechanisms that are supposed to offer our solutions no longer function as well. Maybe the best way to say it is this. When you look at our Parliament currently our Federal Parliament is
predominantly white and male and I have nothing against
white men, I don’t. But it’s just the fact, in
also in our institutions that the part that the power structure is generally quite
dominated by white people and by male people. And so, when we rely on such institutions in a very multicultural society
to provide us with solutions to really complex issues, social issues it’s harder for them to
come up with solutions when they themself have an experience don’t have similar
experience with the people that they’re representing. But it’s also just not a matter of, you know, individual representation there’s also the fact
that in certain situation the very institution, again
say, the Federal Parliament might not even be in sync
with the general society in some topics, look at
climate change for example a lot of Australians
believe in climate change. We don’t have a national response
solution of climate change and it’s the same thing
with same-sex marriage where a majority of Australians even before the pledge was done,
supported same-sex marriage but our politicians were
still dragging the feet you know, the people in power
are still dragging their feet. And so it becomes really difficult when the institutions,
the ultimate institution at least in a democratic society when it can’t seem to offer solutions that take on the nuances of the citizens that they’re serving, I
think it makes it hard then how to reach those solutions. – Thank you. Now I’m gonna go to questions from Slido and from the audience and
there’s one has been rocketing up the popularity stakes of the questions. And this is a, says a live
question from detained refugees “How can we get everyday Australians “to hear us as marginalised people “to understand we aren’t dangerous “and question our detention?” Susan, whether you want
to have a go at this one. A straightforward one to start. – Well, you see I think the blockage to getting rid of that failed
anti human rights policy of offshore detention is a lack of political courage,
that’s what I think it is. I don’t think it’s the community and we saw a lot of immediate coverage of that family from the Biloela community. Now they had been welcomed
into a small country town not supposed to be the most sophisticated human rights conscious part of Australia. Welcomed, loved and supported it wasn’t the people of Biloela who had difficulty with them it was the government of the day and not adequately
challenged, I’m sorry to say by the opposition of the day. About, if they were allowed to stay would that undermine our
border protection policy. I think the problem is
with our politicians on this particular issue
and I’m ashamed to say as a former politician but I really think it’s not the community,
of course, you might get and you would know
better than I in that all but you wouldn’t why get people saying, “Oh, there are too many refugees.” Or, “That’s why we have traffic jams “in the western suburbs of Sydney.” Apparently it’s because
of, you know, migrants The people in offshore detention aren’t even there driving
up the Parramatta Road that somehow they’re
getting the blame for it. People say silly things
that aren’t helpful things but it’s really in the case
of the treatment of refugees and asylum seekers, it
is a failure of policy and it’s a failure of political will I’m sorry to say, on
both sides of parliament. – [George] Thanks Susan. (audience applauding) So I’m pleased to say the next question could have come straight out of one of my constitutional law classes. I think we’ll throw this one to Cathy but if you need, Cathy we
can do this one jointly we’ll see how we go. “Is the proportionality test “about balancing limits on
human rights too legalistic “and a barrier to ordinary
conversations with people?” – Well, in one sense of course it is. It doesn’t mean that it’s not a good thing for lawyers to talk about it
or other experts in the field to talk about it, but
it is a barrier I think to engage talking with your
neighbour over the back fence or engaging some teenager
who comes to talk to you because they know you’ve got
an interest in human rights. But the proportionality
test is in it’s heart a quite simple thing you know. Is this a necessary thing to do? Would there be a less
oppressive way to do it? Is the thing we say we are protecting worth protecting anyway? I mean, at the heart of
the proportionality test a very simple basic questions that we all ask all of the time. So, it’s a shorthand for lawyers it’s the jargon that lawyers use. And like other legal jargon it, you know, cuts off most
members of the community but it doesn’t mean the concepts behind it are not the right
concepts, I think they are and we need to talk about them. – Thanks a lot and I would say on that when we were drafting
the Victorian Charter we built in a proportionality
test in plain English so in fact lawyers did not need to use it they’re public servants and the like and this goes back to the earlier question about who should resolve
these competing claims. Very often will not be a lawyer it’ll be someone working in a Commission working department, working in the agency and so we need tools that are accessible and usable by them and you know proportionality as a concept as you say, it’s common
sense straightforward about reasonableness but it’s a barrier anything to do with jargon
makes things harder. – It is but it’s a shorthand term. So of course lawyers use it. instead of saying is this necessary and it’s the right balance
and is it too severe for what we need and
that all of the questions that are involved in proportionality. Very handy for the lawyers to say if there’s a proportionate response and they know what it means. But the error is when you
think everybody will understand what you mean, they very likely won’t. – Thank you. So Nyadol, I think the
next question is for you. This is a question about how
can we define the boundaries of hate speech in legislation? How can we have this
discussion in a meaningful way as it seems so subjective
and controversial? – I think there is gray
areas where there’s debate whether something is hate speech or not. But I would think that they’re clear areas when it’s clearly hate speech. You know, when you’re spraying
swastika on buildings. I would argue that is
objectively offensive to a group of people that have suffer a particular historical
injury, a significant injury. And so I do think that part of the debate is sometimes, it cast as if
we cannot tell the difference. I think we can, you
know, they’re definitely an area where we cannot
and that’s the area where you might have to have a debate. So, for example in my experience. There was the Milo, you
know, police incident and Milo was another far-right figure engaging really, what I
find offensive, you know. At least in my view I didn’t think that that was incitement of violence and I thought that to then
say that someone like him should not be allowed
to come to the country wasn’t quite clear, you know. I won’t welcome him for tea in my house but he could go hang out
with this group of people that he wanted to. But then you get to someone
like Gavin McGuinness who has established a gang which engages in consistent
pattern of violence and he’s on record on video saying that they will bash people,
they will choke them that they should be shot,
that he’s form a group that, you know, he’s gonna
kill you in nutshell. And I thought that’s clear-cut. You know, that’s someone
who’s inciting violence and in fact is backed by violent conduct. – [George] That’s where you draw the line? – And then that’s where I draw the line. I think when it’s clearly you know, inciting violence
against a group of people I think that’s when we
should, I think intervene that law should intervene. But I think it’s different
though for politicians, I think. I don’t think most politicians
will be courageous enough to say that we should kick
out, well, maybe they are Donald Trump is, we should kick out we would keep out all Muslims. But I do think that when
it comes to politicians and the way they run election campaigns that it becomes really
difficult to draw that line because they have significant
power within a society and as most minorities will tell you at least, you know, black and brown people is that when you have election campaigns like the one we had in Victoria. Which was a law-and-order campaign which was an African gang campaign. It changed the way you experience being a citizen in that state. It changed the way you
walk in public spaces. I was speaking to young people who didn’t feel safe in
taking public transport women who were, you know, being abused and spat on on the street young people who were
being called African gangs just because they were hanging out in groups of three or four young people that were being
kicked out of libraries because the rest of the community had to be made to feel okay. Because there had been an incident involving black kids before they were removed out of a library so that the rest of the
community could be assured. They were not involved in the incident they had nothing to do with it but because of the color of their skin they had to be removed. So that the rest of,
which made me question where is their community? Which community are you
protecting these children from? And if you are telling them that there is a community
to be protected from you? Where do they belong? A heartless message to send
to a group of young people just trying to study at a library. And so when politicians engage
in this kind of conversation it becomes tremendously impactful and sometimes in very negative ways. But it’s a difficult debate to have because in a democratic society you would expect that we are able to have these conversations. Like I said before, the
people you’re having this conversation’s on
are not in the media they don’t have politicians
in the same space backing them, they’re literally
shut out of conversations that impact their day-to-day life. That makes it harder in those systems. – Well thank you, we’ve come to time and that’s a really
appropriate moment to end on. Just the difficulties
of actually balancing up these competing interests. I mean as Nyadol said, on the one hand you might draw the line when it comes to incitement to violence but the problem is drawing it there there are so many harms under
that line that speech can do that in fact in many ways the law is very ill equipped to solve. It really gets back to
the community aspects that we’ve talked about. So thank you, this has been
a really interesting panel I can’t say we’ve got all
of the answers out of this this is an ongoing area of course for which there are no
satisfactory answers. It’s really how we as a community
deal with these questions and strive towards just solutions. But if you can please
put your hands together to again thank Susan, Cathy and Nyadol. (audience applauding)

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