David Coleman (Banks, Liberal Party) Share this | Hansard source

In November of last year leaders of 10 cultural community groups in Australia made an important statement on the Racial Discrimination Act. That statement was made by a range of peak bodies, including leaders from the Chinese, Jewish, Vietnamese, Greek and Arabic communities. Those communities all came together to make a statement about their views on the Racial Discrimination Act, and I think it is worth quoting that statement in part. The group said:

We do not believe that any case has been made to alter sections 18C and 18D of the RDA.

They went on to say:

Sections 18C and 18D of the RDA have been key components in the array of legislative and educative tools used by each of our communities in our efforts to counter-act racism. We are deeply concerned that a change to the substantive terms of section 18C of the Racial Discrimination Act would weaken those efforts.

I note that the committee report does not make any such recommendation to change sections 18C or 18D. This is appropriate—the sections should not be changed.

The report does highlight the clear process issues with the administration of the act and makes a number of compelling recommendations in this area. I note that these recommendations were made with the unanimous support of the committee. It is very important to note that the vast majority of the issues raised in relation to section 18C concern process matters rather than substantive outcomes under the law; in particular, it is clear that claims with very limited or no merit have been allowed to proceed much too far. This has caused a great deal of distress to respondents and has often required them to spend substantial amounts of money defending baseless claims. That is wrong, and it needs to be fixed.

I note in an article in The Australian today that Mr Tony Morris QC, who was the legal counsel for the QUT students in the recent case under the 18C legislation, made some comments in relation to the committee's report. In that article, Mr Morris said:

The recommendations are not what some of us who oppose 18C wanted, but I suspect they will do the job. The best part is the combined effect of all the protections they are proposing to put in for respondents to complaints. If the report's recommendations are adopted, it will lead to a level playing field so that respondents enjoy rights similar to complainants.

Again, it is clear that there have been significant process issues in the administration of this act, but the way to deal with process issues is to deal with process issues—not to change the substantive act itself.

The need to address those process issues is also accepted by multicultural communities. In their submission to the inquiry, the Multicultural Communities Council of New South Wales, the National Sikh Council of Australia, the Chinese Community Council of Australia, the Vietnamese Community in Australia and the Macedonian Orthodox Church at Rockdale all came together and made the following observation:

We support the ‘filtering’ of complaints that can easily be identified as frivolous, vexatious or clearly having no reasonable chance of success through the application of a standard that should be met before proceeding further with the complaint.

There is very wide agreement here that the process needs to be addressed to ensure that vexatious and unmeritorious claims do not proceed for months or years, tying up the legal process and requiring respondents who have clearly not breached the act to be tied up in endless litigation. I do not think there is anyone who thinks that that is appropriate, and the committee makes some very thoughtful recommendations about how to fix that problem. If you fix the process problems, it seems to me that the vast majority of the issues that are debated publicly about the provisions of this act will be addressed. Indeed, Mr Morris, who was the advocate for the QUT students, has acknowledged precisely that.

The committee has unanimously recommended a range of changes to improve the operation of existing law and, if they are implemented, these changes will make it much harder for unmeritorious or vexatious claims to proceed and will put respondents on a much more equal footing with complainants. There are a range of recommendations and they are quite comprehensive, but I would like to touch on a few of them, starting with recommendation 6 in the report. The committee recommends changes to the Australian Human Rights Commission Act 1986 to make it clear that dispute resolution should be provided as early as possible; that the type of dispute resolution should be appropriate to the dispute; and that the dispute resolution process should be fair to all parties, among a number of other points that have been made there. The committee also recommends that the act be amended to empower the commission to offer reasonable assistance to respondents consistent with the assistance offered to complainants. That does not happen at the moment and that has led to some of the justifiable concerns about the administration of the act.

In recommendation 8, the committee makes some important recommendations in relation to time limits because so much of this issue comes back to lengthy delays. The committee recommends that the commission be required to put in place time limits for the initial assessment of the complaint, so that it cannot go on for ever and ever, and for notification to the respondents of the complaint in regard to investigation and conciliation—so putting in place clear time lines for dealing with these things in a much more expeditious manner. The committee also recommends that a greater onus be put on the complainant: that they be required to allege that the act, if true, would constitute unlawful discrimination; that they be required to set out the details of the alleged contravention; that they put in place a refundable complaint lodgement fee—which is an important initiative; and, importantly, that legal practitioners representing complainants be required to certify that in their view the complaint has reasonable prospects of success. The committee also recommends that, where the conduct of the complainant or practitioner has been unreasonable, the commission be empowered to make orders about reasonable costs being issued against practitioners and complainants in order to prevent frivolous claims. These are all very sensible recommendations. It is good to see that the committee was able to come together with commonsense recommendations, and I would certainly support them.

Sections 18C and 18D of the Racial Discrimination Act should not be changed. The case has not been made to do so. The case has most definitely been made that changes to process are required to ensure that respondents are more fairly treated, and I support the recommendations of the committee in this regard.

I would like to thank the many groups who made submissions and contributions to the inquiry process. Many of the community groups in my electorate, and indeed right across Australia, feel strongly about this issue and made important submissions to the committee process. I thank them for their diligence in doing so. I would like to particularly highlight the efforts of the Chinese Australian Services Society—CASS—which, under the leadership of Tony Pang, has made a number of very pertinent points in relation to these matters. I would also like to thank the members of the committee for their work. It is a comprehensive report. There were literally hundreds of submissions and, in a timely manner, the committee has come forward with some very sensible recommendations in relation to process. I would like to thank in particular the member for Berowra, who has applied himself to these very important issues with his customary intellect and sincerity. I thank the committee for their report.

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