Fact-checking the Australian Human Rights Commission

Gillian Triggs, president of the Australian Human Rights Commission has written a very confused piece ($) for The Australian today. I’ve done some fact-checking on two major claims made by Triggs.

Claim #1: Australian don’t care about freedom of speech

Triggs argues that “Australians do not fear that their right to freedom of speech is at risk”.

This extraordinary claim is based on complaints numbers processed by the commission:

Of the more than 17,000 inquiries or complaints made to the commission each year, on average, we receive only three complaints about a breach of freedom of speech or political opinion.

I’m sure Triggs’ data is reliable. But her conclusions are way off the mark.

Her claim is easily refuted. Polling has found that Australians clearly value freedom of speech much more than the so-called ‘right’ not to be offended. When asked which was more important, 82% nominated freedom of speech.

And the low number of freedom of speech complaints received by the commission is totally unsurprising. No one goes to the commission to make a complaint about freedom of speech and Triggs’ article is a perfect demonstration of why they don’t. If someone is concerned about freedom of speech they go to an organisation that actually stands up for free speech – they go to the IPA.

IPA membership has more than doubled since the Andrew Bolt case in September 2011, and the vast majority of our new members tell us they’re joining because they’re very concerned about free speech.

When the IPA asked our members and supporters to fund a full page ad in The Australian newspaper following the Bolt case, more than 1000 willingly donated to fund it.

The Bolt case was a wake up call. It showed us that we can’t take free speech for granted, even in Australia. And since then, we’ve seen the government propose a number of restrictions on our right to free expression. The IPA has actively fought every one of these incursions into our liberty while the commission has sat silent on the sidelines. The editorial ($) in today’s Australian highlights this point:

In the face of Labor’s retrograde steps, something else has been disconcerting — the relative silence of the nation’s human rights watchdog, the Australian Human Rights Commission. The opposition’s legal affairs spokesman, George Brandis, is right when he says the commission has been missing in action during the push for statutory regulation of media content. He argues that by neglecting to advocate publicly for freedom of speech and expression, the commission has taken an ideological position.

The evidence clearly demonstrates that Australians care a great deal about their right to freedom of speech and they recognise when it is threatened – they just know the commission won’t do anything about it.

Verdict #1: Wrong.

Claim #2: We don’t have to worry about current restrictions on free speech

Triggs raises s 18C of the Racial Discrimination Act 1975 in her piece. This is the provision used to take Andrew Bolt to court over articles he published in 2009. S 18C makes it unlawful to “offend, insult, humiliate or intimidate” someone on the basis of their race:

At first blush, this appears to set the threshold for vilification at a low level of “merely” offending and insulting and critics say such a threshold has a chilling effect on freedom of speech. But in the few cases of racial vilification that have come before our courts, judges have set the bar high, requiring speech to be profoundly insulting or offensive before it is caught by the legislation.

This must mean Triggs believes that Andrew Bolt was guilty of profoundly insulting or offensive conduct. If that’s true, does she really believe that it is OK for a journalist to be hauled off to court for expressing an opinion on a matter of public debate? What an extraordinary position for the president of Australia’s taxpayer-funded human rights commission to be in.

Triggs also appears to require lessons in both logic and statutory interpretation.

First, even if it were true that cases of racial vilification have met a high threshold (it’s not) this doesn’t tell us anything definitive about what the limits of the current law really are.

Second, basic principles of statutory interpretation (the process used to understand what laws made by parliament mean) state that no word in a piece of legislation can be ignored, and that words should be given their “ordinary meaning”.

These principles dictate that words that put in place a lower threshold (“offend”, “insult” and “humiliate”) can’t simply be ignored. And the ordinary definition sets a very low threshold indeed. Here’s the dictionary definition of offend: “cause to feel upset, annoyed, or resentful”. The words “insult” and “humiliate” also place unacceptable restrictions on free speech.

An interpretation of mere offence, or mere insult, or mere humiliation is clearly open to judges considering cases brought under s 18C. If the conjunction between the last two words in the list was “and” rather than “or” things would be different but…well, it’s not.

S 18C is a very clear and very real attack on free speech.

Verdict #2: Wrong.

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