Senator Sarah Henderson – Estimates questions to the Australian Human Rights Commission regarding anti-Semitism on university campuses; and its conference combating racism

May 31, 2024


CHAIR: We will resume the hearing.

Senator HENDERSON: I want to ask Commissioner Finlay about antisemitism on university campuses. In doing so, I want to correct the record—and not criticise Senator Faruqi at all—because the ABC misrepresented an interview I did a few days ago. I was making the point—the same point you were making, Commissioner Finlay—that I did not seek to draw a false equivalence between the dramatic increase in antisemitism on university campuses and any other form of racism. When I was asked about Islamophobia, I said: ‘No, that is not an issue.’ It was not an issue in the context of what is currently happening on university campuses. To that point, I ask the commissioner: what is the Human Rights Commission doing about this in terms of its responsibilities? Jewish Australians have very deep concerns. I have distributed the article on the front page of the Australian today, which refers to some pretty heinous statements made by a particular academic from the University of Sydney—factually incorrect and deeply, deeply offensive. What is your view, in the context of your responsibilities?

Senator Chisholm: We have to be careful about going to opinions—you skated close to the wind before. The chair raised this with Senator Faruqi. You just said, ‘What is your view?’—

Senator HENDERSON: That is fair enough, Minister. In the context of your responsibilities, Commissioner, I ask you to respond to the alarming increase in antisemitism on university campuses.

Ms Finlay: In responding, I am conscious of the fact that the work of the commission in this area, including the university study that was recently announced, is being led by our Race Discrimination Commissioner. He would be best placed to give an overview of the work the commission is doing directly on that matter.

Senator HENDERSON: In terms of the op-ed that you wrote and your concerns generally about human rights in this country, I ask you to make some observations about what is going on at university campuses and how you are responding as a commissioner.

Senator Chisholm: Again, I think you have to be careful around observations. It is going close to opinion.

Senator HENDERSON: I am asking about the work of the commission, Minister.

Senator Chisholm: You need to make that clearer.

CHAIR: Senator Henderson, that was my direction to Senator Faruqi. I hope that was clear to you, as well. A direction I have given senators today is that, for questions to be relevant to budget estimates, directing them around the work the commission is doing will get you the answer you are after. We are not here to ask questions about opinion; I made that very clear in my opening statement.

Senator HENDERSON: Just in relation to your work, Commissioner.

Ms Finlay: Perhaps I can approach it in this way. The work of the commission is broadly shared amongst commissioners on a whole range of important human rights issues. The work around the university study is being led by the Race Discrimination Commissioner. My opinion piece outlined the deep concerns I have about racism generally, but in this particular circumstance the rise in antisemitism that we are seeing in Australia, which in my view needs to be called out absolutely and unequivocally. In the work I do in the commission around issues, for example, of freedom of speech and hate speech, I am working closely with my commissioner colleagues in responding to various law reform proposals that are being put forward. That is continuing work which the commission has done in the past and is doing around this issue, in particular. In that context it would be uncontroversial to say that the commission is of the view that, while there are freedom-of-speech issues, there are clearly issues around hate speech, and hate speech is not free speech. That is something we need to keep in mind when we are looking at what is happening on university campuses and particularly when addressing these issues around antisemitism.

Senator HENDERSON: Thank you. President, I turn to the marketing campaign you have combating racism. One of the people involved in your conference is Nazeem Hussain, a comedian. Do you know about his work with the commission?

Prof. Croucher: He is involved in one part of the conference: the Rights On Time session, as part of the Vivid festival on Thursday evening.

Senator HENDERSON: That is the Free + Equal Human Rights Conference coming up on Thursday?

Prof. Croucher: There are two parts to it. Friday is the conference, covering all aspects of the Free and equal report on a human rights framework. The event on the Thursday evening is more in the nature of a show. It is very much a public focused event, part of the Vivid festival.

Senator HENDERSON: So Mr Nazeem Hussain, a comedian, is part of your promotional video for the conference. That is correct, isn’t it?

Prof. Croucher: Yes, that is correct. He is representing the citizen from the future.

Senator HENDERSON: While it is commendable to see Mr Hussain’s commitment to human rights, I want to raise some concerns about some of his comments on social media. I refer to an Instagram reel. I can provide the link to the reel which he posted. The caption says:

Senate condemns ‘from the river to the sea’ chant, and Nazeem Hussain has something to say about it.

In the video—this is a transcript—Nazeem Hussain says:

I don’t get why they’re upset about using the phrase ‘from the river to the sea Palestine shall be free’ and calling it provocative, when all it is doing is provoking freedom for people that live between the river and sea. Who doesn’t want to free Palestine that exists between those two parts of the world? Like, should they not be free: ‘from the river to the sea, Palestine shall not be free’? I mean, what do they want? Do they want liberation or do they want people to remain under oppression? I don’t know. That’s provocative to me that they’re upset at the idea of a liberated people. Can you answer that, Mr Burmingham?

He refers to Senator Birmingham. I raise concerns about those views. Is it appropriate that someone you have commissioned to be part of your human rights marketing material holds these views and is promoting those views?

Prof. Croucher: The role he is playing is very limited. He is not a panellist in either the evening event or the conference. He is representing a citizen from the future. He is videoed doing some material that we have considered. The scripts were developed in conjunction with us. It is a very limited role. The scenarios that he does in the videos are things that are then explored by the panellists on the stage. It is a very limited role. We were not aware of this comment. It is a limited role. It is not like he is one of our staff.

Senator HENDERSON: Was he paid to do that particular marketing role for you?

Prof. Croucher: I’ll have to confirm the nature of any financial commitment.

Senator HENDERSON: If you could. Now you have learnt what he said—and I am arranging to table that link so that you can check precisely what he said—do you hold concerns about those antisemitic sentiments, in light of the fact that he has been engaged by you to promote human rights?

Prof. Croucher: In some situations. We’re not aware of all of the particular issues that you raise. As I said, we don’t monitor people’s work in social media. The engagement with him was a very specific one. We’ve also made clear, in relation to promoting the conference and the panel, that the views of panellists don’t represent the commission’s views. We have made it quite clear that people are participating for particular reasons and that they’re not there to represent the body as such. His role is a very narrow one. It’s very limited. It uses his comedic skills in the presentations that he does.

Senator HENDERSON: Does the Human Rights Commission include antisemitism in its definition of racial hatred, just to be clear?

Prof. Croucher: The definition that we look to is unlawful discrimination under section 18C of the Racial Discrimination Act. That’s the key provision that we use in all of our framing of the issues.

Senator HENDERSON: Just to be clear, do you consider antisemitism to be a form of racism?

Prof. Croucher: Yes, absolutely. Jews and Sikhs are covered as ethnoreligious groups under the definition of ‘race’. Our Racial Discrimination Act does not extend to religious discrimination, but Jews and Sikhs are regarded in law as ethnoreligious and covered under the Racial Discrimination Act.

Senator HENDERSON: In light of that—and I appreciate that you have just learnt what Mr Hussain has said; you haven’t had prior notice of it—isn’t it important, given the commission’s role to prosecute and combat all forms of racism, to make sure that people who you employ and engage don’t hold views that are antisemitic, or other sorts of racist views?

Prof. Croucher: I can assure you that the whole of the conference will ensure inclusive and respectful discussions. We carefully structured the panels. If issues had come to our attention, they may have led to the rearrangement of certain participants. We’ve made it quite clear that the conference will be moderated through the lens of respectful discussion and facilitating a real focus on human rights reform.

Senator HENDERSON: Will you review Mr Hussain’s involvement in your conference, in light of what you have just learnt?

Prof. Croucher: Certainly, we keep a watchful eye on everything. There is a difference between antisemitism and criticism of the Israeli government; they’re different concepts. Without now embarking upon a lecture on 18C and the implications of what is offensive, humiliating or intended to intimidate under 18C, it is better to say that all of the conference will be done in a respectful way. We’ve made clear that the views of participants are not the views of the commission. We’ve already had to scrutinise some of the engagement. I’d rather leave it at that, Senator.

Senator HENDERSON: Implicit in your answer was the suggestion that Mr Hussain was perhaps criticising the Israeli government. I appreciate the difference. He actually wasn’t doing that. He’s used a phrase that the Prime Minister has condemned as a violent statement. What’s your position in relation to the use of that phrase ‘river to the sea’? I asked the race commissioner about his view of that. He said it depended on the context. I ask: is there any context where it’s appropriate to be using that statement, and what is that context?

CHAIR: Senator Henderson, the word that you are continually using in asking your questions is ‘view’. There are really clear standing orders about not asking for opinions on policies. Asking about the work of the commission is certainly what we are here to do today. I understand what you are trying to get at. What we need to do is adhere to the standing orders. If there is a way that you can phrase a question to make sure that we are not asking officials for opinions and so that the work of the commission is the focus of your question then we will be able to move forward.

Senator HENDERSON: Thank you for your guidance, Chair. Commissioner, in light of the statements made by Mr Hussain, and in light of his involvement in the conference, do you consider it appropriate that he continues to be in your employ?

Prof. Croucher: He is not in our employ.

Senator HENDERSON: Engaged by you as a contractor, or however he is engaged.

Prof. Croucher: Thank you for raising it. It is an issue that I am happy to look at. We have refreshed our look at the way some of the panels are structured. If I may, I will bring this back to Commissioner Sivaraman’s response about context. As we administer the Racial Discrimination Act, section 18C is very specific on what is unlawful discrimination, which is the essence of our jurisdiction, after all. In that context, if we had a complaint based on the use of an expression like that—I’ll anchor it squarely in our jurisdiction—the lens that would be used would be: is the use of such speech in public reasonably likely to offend, insult, humiliate or intimidate a person from the same community? That is the lens of the law which is our jurisdiction. If a court were to consider it, that would be the lens that they would use as well.

Senator HENDERSON: President, do you have any current complaints of racism against any member of your staff? Could you outline what those complaints are, without identifying the particular people, if that’s the case?

Prof. Croucher: I won’t comment about any complaints that we have. If we receive any complaints, they are considered through our established policies and in light of the obligations on the staff under our staffing arrangements and the code of conduct. They are conducted confidentially and managed in an appropriate way.

Senator SCARR: President—I also invite the race commissioner to make a comment on this, if you would like to—in relation to that particular phrase that Senator Henderson referred to, does the Australian Human Rights Commission have a position on the meaning of antisemitism in particular in the context of what’s been referred to by quite a famous Russian refusenik, Natan Sharansky? He has outlined the three Ds of antisemitism, namely: demonisation, double standards and de-legitimisation, which, in particular, is questioning Israel’s fundamental right to exist as a Jewish state. Does that constitute antisemitism? Is it the position of the Australian Human Rights Commission that that constitutes antisemitism, for the purposes of your work in combatting racism?

Prof. Croucher: Perhaps I could—

CHAIR: President, before you answer that question, I think we are being quite creative in the way we are putting these questions to you. Senators may put specific questions to you, using different language, but we are not here to ask you for opinions. If it is the work of the commission that senators are interested in, that’s what we are here to ask questions about. President, you were about to respond.

Prof. Croucher: I would make two observations. One is to repeat that questions of antisemitism, as they are raised as complaints, are grounded in section 18C. The importance of Commissioner Sivaraman’s work is in leading conversations with communities about the impact on them. It needs to be an open conversation. For us, the law we administer is quite clear. That is our framework for assessing issues as lawful or unlawful. The conversations that Commissioner Sivaraman is leading have a much more open nature.

Senator SCARR: I should just be clear. Chair, with indulgence, I am asking the question because the AHRC has a particular role in applying the law as it sees the law. One of the questions is: what constitutes antisemitism; what falls within 18C, as you referred to? There are particular views with respect to whether a phrase like ‘from the river to the sea’ constitutes antisemitism, under the analysis of someone like Natan Sharansky.

Prof. Croucher: Perhaps I can refer to the answer I previously gave about the jurisdiction under section 18C and reiterate Commissioner Sivaraman’s observation that it is about context and the likely impact on a person of the same community. That would be the lens for the law. We do not make determinations. It is a conciliation process. That’s the scope of our jurisdiction with respect to that.

CHAIR: I don’t think we are asking for legal advice either, President. Mr Sivaraman, did you want to add to that?

Mr Sivaraman: I think the president has given a fulsome answer. There is really nothing for me to add to what she said.

Link to Parliamentary Hansard