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Wednesday 20 September 2017

Opinion

I've Been Trigged! Sexism, Racism, Ageism From The Aust Human Rights Commission

Paul Zanetti Sunday 25 June 2017




The next time I submit a complaint with the Australian Human Rights Commission I’m identifying as an aboriginal woman.

I made the faux pas of lodging a complaint as an older white man over an offensive, racist, sexist public comment by a high profile, elected aboriginal woman.

Big mistake. The complaint was doomed from the outset. Terminated.

I got Trigged!

My crime is, in today’s Australia I am…White. Old. Male - a demographic that's vilified across the board, on social media, in academic institutions, the public service, the courts, tribunals and State commissions - for simply being white, old and male.

So, in an effort to get equal treatment, free from discrimination, I declare that forthwith I be officially recognised as an indigenous female. I recommend everyone else does, too. It’s the sure-fire way to being treated with fairness before the ‘human rights’ crowd. In fact, it's a massive advantage. 

The short back story is, for the past decade cartoonists including myself have been hauled before the AHRC for drawing cartoons highlighting the deeply worrying, high levels of child abuse in aboriginal communities.

The most recent, most infamous case was that of my late, great mate, Bill Leak, who commented with his pen on the latest shame of delinquent aboriginal kids ending up in detention directly due to a distinct lack of protection in their own home - from their OWN FAMILY MEMBERS!!.

Bill’s cartoon depicted an outback scene with three aborigines.

The first character, a copper, is shown handing a wayward street kid to his boozy father, advising the deadbeat dad, “You’ll have to sit down and talk to your son about personal responsibility.”

The dad, grog can in hand, replies, “Yeah righto. What’s his name then?”

A white woman living in Germany, apparently identified as the drunken, black man in the cartoon, and subsequently fired off a complaint to the AHRC on the basis that she was ‘offended’.

Now, here’s the thing with the AHRC and Section 18C of the Racial Discrimination Act (RDA). Anybody can fire off a complaint and claim offence as long as the ‘offensive’ behaviour is made publicly and based on colour, race or national or ethnic origin.

The AHRC is bound by its statutory obligations to investigate and conciliate a complaint under the Australian Human Rights Commission Act 1986 (AHRCA).

The current President Gillain Triggs has confirmed this in interviews when shoring up her option to chase white, male university students or white, male cartoonists. 

What the President doesn’t tell you is that the President also has the powers to terminate a complaint on a whim under the AHRCA.

This gives the President extraordinary freedoms to play fast and loose with discrimination laws to fit with any ingrained or perceived bias they might have.

In other words, by picking an either/or choice of contrary and conflicting powers, the President of the AHRC has the wriggle room - and the right - to be a bigot, a racist, an ageist, and a practitioner of political or partisan sexism if he or she so chooses.

Any biased, hopelessly flawed President could be irresistibly tempted to misuse their statutory powers.

As for my experience, the complaint against a cartoon I drew in 2009, identical in circumstance to Bill’s cartoon last year, left me with the spine-chilling awareness that cartoonists, journalists, commentators, bloggers, and even social media users can all be answerable to a state-owned institution.

Goodbye free speech. Hello Orwell’s 1984.

I’ve been sensitised to the right to free speech, and hence compelled to speak up in its defence.

Section 18C of the RDA is a muzzle on free speech, proven so, countless times over the past decade. Bill Leak and I were invited as witnesses to last year’s Parliamentary inquiry into Freedom of Speech, all to no avail. The committee, complicit with the lame, anaemic Turnbull government, has chosen to defend free speech by raising a white flag.

So when a member of parliament, Linda Burney MP, who happens to be a part aboriginal female made a public comment to the media on 9 November 2016, that, “It astounds me that the people that are advocating for the removal of 18C are basically white men of a certain age that have never experienced racial discrimination in their life,” I realised full blown racism was now permeating from our leading democratic institution - the Federal Parliament.

An elected representative was using the position of a taxpayer funded office of lurks and perks to punch down constituents not like her, solely on the basis of the colour of their skin, age and gender; many of whom are funding her lifestyle of elite privilege. 

This wasn’t an off-the-cuff comment, but an organised media conference, pre-determined to engage in identity politics to vilify a segment  of the community through race, age and gender hate speech.

It was the sort of conduct Section 18C of the RDA had been designed to prohibit.

On the morning of 10 November 2016, I filed a complaint to the AHRC through their online complaint form notifying the Commission that Ms Burney’s comments were in breach of the Act on the basis of ‘colour’.

Compensation is offered, so on reflection I felt a donation by Ms Burney to a charity for aboriginal kids would be a worthy cause and could smoothe the way to a quick and easy settlement. I requested a $10,000 donation, and given her tax-funded salary and perks, and the cause, I felt Ms Burney may have seen the error of her way, issued a swift apology, and might have taken the opportunity to get some selfies with a group of grateful aboriginal kids as she handed over a cheque. That would have been the honourable thing to do.

Not to be. 

Ms Burney, on advice from the AHRC decided to dig in her heels, at least that’s what my subsequent Freedom of Information info shows. Burney was nudged and winked with advice from the AHRC that should she not reply to the complaint, it could well be terminated.

Makes you wonder if Bill Leak, The Australian and the QUT students were given the same advice by the AHRC.  

Here’s a quick rundown of events since I lodged my complaint. 
 
After my 10 November 2016 complaint, I received a reply from the AHRC on 23 November 2016, stating that Professor Triggs would most likely terminate my complaint unless I convince them otherwise. There was no conciliation offered as per the AHRC statutory obligation under the AHRCA . 

On 25 November I wrote to the AHRC reminding them of their statutory obligation. I referred to a recent interview on the 7:30 program with President Triggs, where she confirms the AHRC obligations:

Gillian Triggs:

“So the first obligation is to accept the complaint and then to investigate it and conciliate it.”


“What we normally do which is investigate the facts, get a sense of what each of the parties is saying and then attempt to conciliate the matter.”

“Our role is not a court. We are there to, in effect, stop matters going to the court.”

“We're there because we must under our statute consider the complaint. We investigate it and try to conciliate it. Now in the course of the conciliation, we may well say to the parties, "Look, this is not looking like a substantial matter." And that will often encourage the parties to withdraw or to conciliate.”

“As I say, almost all the matters we conciliate successfully and we conciliate 76 per cent of the matters that we try to conciliate. That is a primary objective of ours to try to ensure that people have got their day before the commission. They can make their argument, they can conciliate if possible.”

“Because the primary function is to achieve a conciliation.“

“So we are trying to persuade them for one side to acknowledge that perhaps a statement was unacceptable, for another to perhaps apologise. That's mainly how these matters are resolved”

Pretty bloody unequivocal.

But, none of this took place with my complaint.

There was no conciliation.

There was no contact with the offender via the AHRC.

There was little-to-no communication for months between the AHRC and myself, the complainant.

In fact, rather than “stop matters going to the court”, the AHRC in my case has done everything to facilitate the matter ends up in court.

The tawdry handling has been a gross abrogation of the AHRC statutory duty, in contrast to the PR rubbish spun by Gillian Triggs to the ABC.
 
But as history has shown repeatedly, truth and consistency matters little with this AHRC President.

On 25 November and 28 November 2016  I followed up by letter to the AHRC.

On 29 November 2016 I received a short confirmation of my letters to the AHRC.

On 12 December 2016, after consulting with a Sydney QC who confirmed my position is sound, that I do have grounds for a complaint under the RDA, and the AHRC is obligated to conciliate as per the AHRCA 1986, I forwarded another letter to the AHRC confirming my legal position with precise extracts from the AHRC Act 1986 which governs the AHRC and its President.
 
By 22 February 2017, months after lodging my complaint, I’d had no further communication from the commission so I wrote to the office of the Federal Attorney General, George Brandis (the appropriate Minister), requesting Freedom of Information release of documents in relation to my case.

By 31 March 2017, there was no response from Brandis’s office so I called and was assured there would be a follow up.

By 18 April 2017, I still had no reply, so I called and wrote to Brandis’s office reminding them that under the Freedom of Information (FOI) Act 1982 the Minister must act upon a request within 14 days.

FREEDOM OF INFORMATION ACT 1982 - SECT 15

Requests for access
Timeframes for dealing with request

             (5)  On receiving a request, the agency or Minister must:
                     (a)  as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and

On 25 April 2017, I made a direct request to the AHRC for FOI release of documents.

Several days afterwards, on 1 May 2017, I received a notice of termination of my complaint from the AHRC.

Boy, and here was me thinking they were pretty slow to act.

The grounds for termination were:

“In your complaint form, you also refer to political opinion discrimination....the Commission can only inquire into complaints alleging political opinion discrimination when the alleged events take place in the area of employment or occupation.”

There’s nothing in Section 18C of the RDA that states this.

And if so, why did the AHRC uphold a complaint from a white woman in Germany about a cartoon of a drunk aboriginal man, drawn on the Central Coast of NSW? This woman didn’t work will Bill Leak.   

The termination letter goes on:

“In your complaint form, you also refer to racial discrimination..... you did not appear to have pointed to any nullification or impairment of the recognition, enjoyment or exercise of any human right as required under section 9 of the RDA. In any event, the issues you raised in your complaint could be considered and dealt with under the racial hatred provisions of the RDA.”

Incredible. I didn’t make the complaint under Section 9 of the RDA.

I made the complaint under Section 18C of the RDA which plainly and clearly states:

Offensive behaviour because of race, colour or national or ethnic origin

(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.


The AHRC also admitted there were a total of 44 - yes, FORTY FOUR - complaints to the AHRC over the Linda Burney’s offensive comments.

Extracts from AHRC termination letter:

The complaints
In the period of 9 November 2016 to 15 November 2016 (the relevant period), the Australian Human Rights Commission (the Commission) received a total of 44 complaints against Ms Burney in relation to a comment that is reported to have been made by her.

The complainants in this matter are all male and have individually described themselves in various ways including, white, fair skin, Caucasian, Anglo Saxon, Anglo Celtic, Celtic, Australian, British, Welsh, Irish, European Jewish, European, Maltese, German, Italian, Polish, Greek and Austrian.

The complainants allege that Ms Burney has engaged in an act of racial hatred by making the following comment to reporters on 9 November 2016 which has been published in a number of media outlets, including in The Australian, Daily Mail Australia and www.news.com.au:

“It astounds me that the people that are advocating for the removal of 18C are basically white men of a certain age that have never experienced racial discrimination in their life.”

It is also alleged that Ms Burney made the same comment on Radio 2GB on 10 November 2016.

The complainants variously state that they were offended, insulted, humiliated and/or intimidated by the comment and that they considered themselves to be of the age group referred to in the comment. Some complainants also state that they have been critical of 18C. A number of the complainants assert that they have experienced discrimination in their life.

Some complaints did not follow through with further material, so the end list of complainants was whittled down to a total of 17 which were sent to Linda Burney for a response.

Notification to the respondent
Copies of the remaining 17 complaints were sent to Ms Burney on 16 December 2016. Ms Burney did not provide a written response to the complaints. However, Ms Burney verbally advised the Commission on 21 March 2017 that she found the complaints to be vexatious and pre-organised and that she felt there was no need for conciliation.


So there you have it. Linda Burney couldn't be bothered responding in writing but decided verbally the complaints were ‘vexatious’ and ‘pre-organised’.

There was no evidence how Linda Burney came to that conclusion, suffice to say that it was simply invented by her in my case. I have no idea if the other complaints were pre-organised but my complaint was genuine and made independently of anybody at 7:30am the day after the offending comments.

There’s nowhere in Section 18C of the RDA or any law that states an offender can simply invent a scenario, which can be accepted as grounds for termination of a charge or a complaint

But that's how the AHRC operates under the current Presidency. It’s out of control.

The termination letter goes on:

I understand that the complainants state that they were offended by the comment in question. However, it is not at all clear, given the way in which section 18C has been interpreted, how the published and/or broadcast comment by Ms Burney would meet the objective test of being ‘reasonably likely to offend, insult, humiliate or intimidate’ a person or a group of people of which they are a part in all the circumstances.

In the circumstances, I consider that it is very difficult to argue that the comment in question would have profound and serious effects on these persons or on other white men who are part of that particular group.

Overall, I consider that there is insufficient information before the Commission to support a contention that the requirements under section 18C(1)(a) of the RDA have been met. Therefore, I have decided to terminate the complaints under section 46PH(1)(c) of the AHRCA on the ground that I am satisfied that the complaint is lacking in substance.

Section 18D
Even if it is possible to establish that Ms Burney’s comment was reasonably likely to offend, insult, humiliate or intimidate a relevant group, potentially a group comprising white men of a certain age who were advocating for the removal of section 18C and who had experienced racial discrimination themselves, I consider that the comment may still come within the defences in section 18D.

The exemption in section 18D would apply for example if Ms Burney’s comment was made reasonably and in good faith in the course of a discussion or debate held for a genuine purpose in the public interest.

Similarly, the exemption would apply if Ms Burney’s comment was made reasonably and in good faith in the course of making or publishing a fair comment on a matter of public interest and if the comment was an expression of a genuine belief held by her.

I have not formed a concluded view on these issues under section 18D in relation to these complaints as I consider that the complaints do not meet the requirements of section 18C.

The AHRCA says that after a complaint is terminated, the person affected by the alleged discrimination may apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) to have the allegations decided by the court. Information about the court or the court process is available from a court registry or from their websites at www.federalcircuitcourt.gov.au and www.fedcourt.gov.au.

So, having told the ABC during a 7:30 interview, “Our role is not a court. We are there to, in effect, stop matters going to the court.” the AHRC has in this case failed to conciliate, but terminated on the verbal say so of the offender, and subsequently encouraged the case to go to court.

This wouldn’t have been the case had I been an aboriginal woman complaining about a white man - refer to the Bill Leak case and the QUT student case.

But for me, this one's the real doozey. I hope you’re sitting down.

My FOI docs came through a few days ago and here’s what they reveal.

Notes taken during phone calls show Linda Burney was advised that should she choose to decline conciliation, the complaint could be terminated.

Nudge, nudge, wink, wink.

Now, all correspondence from me and other complainants were forwarded to Linda Burney.

But.....no correspondence or record of communication from Burney was ever sent to me, until my FOI application, months later where large sections of correspondence was redacted, for privacy reasons I was pre-informed, for example, emails, addresses etc (although all Linda Burney's email, address and contact info is publicly available online).

Large chunks of correspondence have been chopped out. It’s easy to conclude there’s a lot of incriminating correspondence the AHRC doesn’t want seen. ‘Coverup’ is probably the term I’m thinking of.

What is apparent, the AHRC went through the process (charade?) of writing to Linda Burney on a number of occasions, on:
  • 16 December 2016
  • 31 January 2017
  • 14 February 2017
  • 28 February 2017

Without replies from Burney.

On the letter of 28 February 2017 Linda Burney is asked if she would like to be involved in conciliation of the complaint, then advised by the AHRC.

“I would appreciate if you could contact me by Tuesday 14 March 2017 to advise of your views on possible resolution of these matters through conciliation.

If no contact is made by this date, the matter will be referred to the President’s Delegate for her consideration. In such circumstances, the Delegate may assume that you do not want to participate in the Commission’s conciliation process. If the Delegate forms this view, the next steps may involve the Delegate deciding to terminate these complaints on an appropriate ground provided under section 46PH of the Australian Human Rights Commission Act 1986 (Cth)."

Then on 1 May 2017 the Australian Human Rights Commission wrote to me notifying they have terminated the complaint.

Takeaways
  1. Before filing a complaint with the AHRC, always identify as an aboriginal woman.
  2. Never, ever, under any circumstance admit to being a white, older man
  3. It can only help your case to throw in links or identification with any mix of religious, cultural, ethnic, gender fluid groups.
  4. Mention here and there affiliation with the Greens (e.g. “When I was at a Greens Foundation fundraising event in Tasmania…” etc)
  5. Global warming. Spurious claims that if you win your case, this will help stop global warming. This will get you a two thumbs up at the AHRC. Not that this has anything to do with discrimination, but as we can see nothing much else in their decision making has anything to do with anything, so global warming can’t hurt, and it’s bound to get you a warm, fuzzy feel from the AHRC, and feelsplaining goes a long way over there. 
  6. Donald Trump. Rubbish Donald Trump. This is bound to get you heaps of extra brownie points.
  7. Hillary. Just mention Hillary. You'll be in.
So after all that and everything else before it, you can't help coming to the conclusion the Australian Human Rights Commission is one big fat, over funded, sexist, racist, ageist, bigoted outfit.

Gillian, you can confidently retire as President with your head held low.