Bills - Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 - Second Reading

Senator IAN MACDONALD (Queensland) (09:53): I am very pleased to be able to contribute to the debate on the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 today. I congratulate Senator Burston for bringing this bill before the parliament and highlighting an issue I think most Australians find incredible and a position most Australians believe could not happen in a country such as Australia. So, Senator Burston, thanks for bringing this forward.

I might diverge slightly to correct Senator Burston's colleague on a different matter. He said in the chamber the other day that I had congratulated him for bringing on a debate on climate change and that was the first time we had ever had a debate on climate change. That was not correct. As senators who have been here for a while know, we have had many a debate on climate change over the last 10 years and I am proud to say that I have been involved in most of them trying to expose the Greens for their hypocrisy in this as well as every other issue.

What I did say to Senator Roberts was that this was the first time we have had a real debate on the science behind climate change, an issue which I might say I never get involved in because I am not a scientist and I do not understand it. My issue has always been that Australia, which emits less than 1.4 per cent of the carbon emissions of the world, should do things when everyone else does but not lead the way, as the Labor Party and the Greens would have us do and destroy our economy and jobs of Australian workers at the same time. But that is a digression.

I do thank Senator Burston for raising this very important issue. The bill mirrors some of the matters raised by an eminent and philanthropic Queensland QC—Mr Tony Morris QC of the Queensland bar. He has written to the Senate Legal and Constitutional Affairs Legislation Committee a couple of very erudite, very interesting and almost entertaining but very serious and important opinions on this and other issues relating to the Human Rights Commission. I thank Mr Morris for his generous intervention in the workings of this parliament with the advice that he has given. I might say in passing that, if the parliament had sought that advice in a commercial way, it would have probably cost the parliament between $10,000 and $20,000 for the quite detailed, well argued, well researched and well referenced opinion that Mr Morris gave.

Mr Morris is to be thanked not only for that but also, as I understand from media reports, for acting for several students that Senator Burston referred to in his address who simply would not have had the money to take on the outrageous claim that was made against them by an employee of the Queensland University of Technology. This is one of the problems with the justice system in our country. These three students simply could not have afforded the cost of solicitors, barristers and senior counsel to take on this issue. I understand from media reports that Mr Morris had made his services available to some of them without charge.

Again this whole human rights issue that is the subject of Senator Burston's bill is a salient reminder of the unfairness of this whole situation. I understand—and I am only going from what I recall of media reports—that one of the impecunious students named as a respondent, who eventually found out about it, did the thing that I think most people would do—just paid $5,000 in go-away money. He was not guilty and did not want to admit anything but was concerned that he might have been up for paying $250,000 if the action had been successful, so he did what most impecunious students would do and simply said: 'I've been told that if I give them $5,000 they will go away, so here's my $5,000 go-away money. I don't really have it. I'll have to work a lot longer at McDonald's or Red Rooster to make up the money. But here's the $5,000 because I can't simply afford the prospect of ending up with a judgement against me of $250,000.' Of course that was never likely to happen, but if you cannot afford good counsel you do that sort of thing and pay go-away money because you cannot afford to do anything else.

That is not directly relevant to this bill but is another issue that is a sad reflection on the way society is at the moment. I thank Mr Morris for his generosity not only in the advice that he has given to parliament but also in the generous work he did on behalf of some impecunious students who otherwise would not have been able to find a voice in the courts of our land.

Senator Burston's bill relates to a lot of issues which everyone would think were a matter of common sense. I think most people would be surprised to think that an amending bill or a new bill was needed, because Senator Burston's bill simply relates to what everyone would assume had happened. I have not correlated Senator Burston's bill to these facts, but I think the Human Rights Commissioner, Professor Triggs, intimated that what Senator Burston's bill is trying to do actually happened. I think she intimated that in one of her many appearances before the Senate Legal and Constitutional Affairs Legislation Committee's estimates hearings.

At estimates, when public servants, those on the taxpayer funded payroll, are asked questions, they are required to answer them. Professor Triggs has on a number of occasions been asked questions—which are highlighted in Senator Burston's bill—about what she did in a preliminary way and what pre-investigations were undertaken before embarking upon the course of action the Human Rights Commission did or, it seems, did not do when it should have in the case of the QUT students. At the last estimates hearing Professor Triggs used the excuse, 'This is sub judice, so I can't talk about this to a Senate estimate committee.' As Mr Morris rightly pointed out in one of his opinions, whilst Professor Triggs found she could not talk to the Senate estimates committee about these issues—he observed that Professor Triggs repeatedly refused to discuss the QUT case in our committee—she had previously done so in other public forums such as, would you believe, the ABC current affairs program 7.30. Her pretext to the Senate estimates committee was that, having talked about it publicly on The 7.30 Report on the ABC, she could not talk about it in the Senate because it might prejudice the case before the courts.

I thought Professor Triggs's interpretation of sub judice was a little bit wide, but then again I used to be a small town country lawyer some time ago. It has been a long time since I practised law, and I do not think I was ever much good anyhow. But Professor Triggs is supposedly a woman of very strong legal background, with a very comprehensive and recognised background in law, so who was I to argue with her? But I note that Mr Morris, who understands these things much better than I, said in a letter to the committee, which was taken as a submission and is public knowledge:

I feel compelled to inform you, and the Committee, that the explanation given by Professor Triggs for her refusal to answer questions concerning the QUT Case is arrant persiflage and falderal.

I might say, like most other senators, I had to go to the dictionary to see what 'persiflage' and 'falderal' were. But, having seen the dictionary definition, I think Mr Morris is absolutely correct and precise. Mr Morris went on to say:

Had such an excuse been trotted out by a person without legal training or qualifications, it might (perhaps) be dismissed as a genuine misconception. But when a lawyer of the standing of Professor Triggs mouths such tendentious drivel—and does so, moreover, before a standing committee of the Upper House of the National Legislature—it has to be called out for the diversionary tactic which it plainly is.

Mr Morris, in what is now a public submission, goes on to deal with the powers and privileges of a Senate committee. I would certainly urge those in this chamber, including the clerks, to have a look at Mr Morris's opinion on the powers and privileges of Senate committees and privileges of the House. They are useful and inexpensive advices that could well benefit some of us in this chamber.

Mr Morris, in his letter, goes on to say:

On its face, it is a very noble and high sounding sentiment to wish to avoid prejudicing proceedings before a court … And, if there were any genuine risk of such a prejudice, I am (speaking for myself) completely confident, both that no Honourable Senator—regardless of political affiliations and agendas—would knowingly ask a question which exposes such a risk; and also the committee as a whole would disallow such a question, or excuse the witness from answering it, once any such a risk became apparent. But the demonstrable reality is that no such risk exists, ever existed, or (indeed) could exist. It is rather less noble and high sounding for a witness, like Professor Triggs, to suggest the existence of such a risk merely as a calculated subterfuge to avoid answering embarrassing questions, where the only potential for prejudice is a prejudice to the witness's own reputation (assuming that she possesses one) for honesty, integrity, competence and diligence.

I raise these matters in this debate because they are very germane to the issues Senator Burston has addressed in the bill before the chamber. As senators know, we will be sitting in estimates again the week after next. We indicated to Professor Triggs at the last hearing that, hopefully by the time of the next hearing, the court case under which she sought refuge would be resolved and that we would be asking her fully all of the questions which Senator Burston's bill very appropriately raises.

Armed with some very good legal advice, I would suspect—I cannot speak for the committee but my guess would be, knowing the committee that I chair—that the committee would probably adopt Mr Morris's version of sub judice and prejudicing court cases and, Senator Burston, we would expect Professor Triggs to actually answer some of the issues that you raise. I hope that your time commitments enable you and other senators to appear at the estimates committees and ask questions. As Mr Morris points out—Senator Burston mentioned this at length in his speech—only two of the students who were respondents in the QUT case—and he names them—have raised any issue regarding the AHRC's handling of pre-litigation processes and procedures. On 4 November 2016, the case against two of those respondents was summarily dismissed by the Federal Court, and there is no appeal to that. There was then the issue of an appeal by Ms Cindy Prior, who was the accuser, the plaintiff, the first party, who claimed $250,000 for something that most Australians could not believe was in any way offensive and certainly not racially offensive—and I think Senator Burston mentioned that in his address earlier, so I do not need to go through that. But Ms Moriarty, the solicitor for Ms Cindy Prior, apparently missed the appeal date and then blamed everyone else for her incompetence in not understanding when appeals had to be lodged.

There are two matters now pending before the Federal Court: an application for leave to apply out of time for leave to appeal—because she missed the time, she has had to apply for special leave to appeal out of time— and if that succeeds then there will be an application for leave to appeal—not an appeal, but an application for leave to appeal. Those applications are to be heard by a senior judge, and even if those applications succeed it will only mean that Ms Prior has the opportunity to appeal, despite her solicitor's mistakes. Of course, it will not mean that any appeal will succeed or is likely to succeed. Mr Morris makes it quite clear in his opinion that senators asking questions of the Human Rights Commission in a Senate estimates committee is hardly likely to be front of mind of the senior judge of the Federal Court when he hears these matters. Mr Morris quite rightly says that questions of this nature are in no way likely to in any way impact on any hearings before any court at any time in the future in relation to this matter.

Most of the problems which occurred in the QUT case would have been cured had the bill that Senator Burston proposes been in play. As I say, Senator Burston, everybody thought—even, it seems, the Human Rights Commission itself—that the pre-investigation investigations by the Human Rights Commission would have been done. But the facts will show, and we hope to get those facts at the next estimates committee hearing, exactly what the Human Rights Commission did. What we know for certain is that they did not even bother to tell the respondents for about 14 months after the complaint was made—how could that possibly happen in an Australian judicial or quasi-judicial system? Fourteen months before the respondents, who might have been facing paying out $250,000, were even told that the complaint had been made—just outrageous.

Senator Burston, I wish your bill well. Thank you for raising the issue publicly and I hope it will have an influence in correcting a very poor situation. (Time expired)

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