Human Rights and
Equal Opportunity Commission
The Hon. John von Doussa, QC
Our Reference: 2016307FC
Associate Professor Andrew Fraser
NORTH PARRAMATTANSW 2151
Dear Associate Professor Fraser,
I refer to the complaint from Mr Safi Hareer lodged under the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOCA") against you alleging racial hatred under the terms of the Racial Discrimination Act 1975 ("the RDA").
Mr Hareer alleged that the comments and attributions contained in your letter which were published in the
Sun on Parramatta 6 July 2005came within the scope of section 18C(1) of the RDA. I note it is not in dispute that on 6 July 2005, the Sun published your letter titled "Refugees and Anglo-Australians" and also a front-page article titled "Keep them out" written by Gerald Sutton in which references were made to the views expressed in your letter. Parramatta
In response to the Commission's inquiry into this matter, you wrote to the Commission on 10 October 2005 and 6 March 2006 providing copies of several articles and papers published by you and others in support of your submission that your comments do not contravene section 18C(I) of the RDA and even if they do, they are covered under section 18D of the RDA. During the period between 15 and
21 March 2006, you further communicated with the Commission by emails and provided further papers published by you along with extracts of emails exchanged between you and Mr James McConvill, Editor of Deakin Law Review, to indicate that your comments were made for genuine academic purposes in the public interest. The Commission also received letters dated 3 October 2005from Dr James Mackintosh and dated 8 October 2005from Professor Philippe Ruston in further support of your submission.
Furthermore, Mr Hareer's representative provided the Commission with a submission dated
30 January 2006prepared by Ms Anna Katzmann SC and Mr David Knoll ("the Complainant's submission") along with Mr Hareer's written comments on your response. Copies of these submissions were provided to you on 2 February 2006for your information and further comments prior to the matter being referred to me.
You have cited the decision in Coruna v West Australian Newspaper Ltd HREOC 12 April 2001 and proposed that I should consider Mr Hareer as a "hyper-sensitive victim" and not a "reasonable" reader for the purpose of section 18C of the RDA. Having carefully considered the content of the letter complained of, the arguments put forward by the parties and all of the material before me to date, I am satisfied that the comments contained in your letter titled "Refugees and Anglo-Australians" published by the Parramatta Sun on 6 July 2005 meet the objective threshold prescribed under section 18C of the RDA. I have reached that view as I am satisfied that your comments are "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate" Mr Hareer and/or persons of Sudanese/black African origin and that your letter was written and sent to the Parramatta Sun for publication because of the "race, colour or national or ethnic origin" of the complainant. I note you commenced the letter by stating that "Now that a large number of Sudanese refugees have been settled in Parramatta-Blacktown area" and made further references to "black Africans" in the body of the letter.
I have considered the exemptions provided under section 18D of the RDA which prescribes that "Section 18 C does not render unlawful anything said or done reasonably and in good faith:
a) in the performance, exhibition or distribution of an artistic work; or
b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest, or
c) in making or publishing:
i) a fair and accurate report of any event or matter of public interest; or
ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
I note you argue that the comments contained in your letter are fair comments which were made reasonably and in good faith, based on your own genuine belief and expressed for genuine academic purpose on a matter of public interest.
Section 18D of the RDA requires that to be entitled to the exemptions provided under sub-sections (a), (b) and (c), the act complained of must firstly satisfy the primary conditions that the act was done "reasonably" and "in good faith ". Given the nature of the language used in your letter such as "expanding black population is a sure-fire recipe for increases in crime, violence and a wide range of other social problems ", "the steady erosion of their (Anglo-Australians') distinctive national identibi" and "national suicide", I am not satisfied that your comments were made with sufficient constraints and proportionality for them to be regarded as to have been made "reasonably and in good faith". I note that the Complainant's submission in paragraphs 30 and 41 cites the decisions in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR and Jones v Scully (2002) 120 FCR 243 in support of the submission that your comments were not made "reasonably and in good faith". I agree with the submissions made in those paragraphs.
You claim that your comments were made based on your own genuine belief and you have provided copies of certain papers that you have written on related matters in support of your claim. However, whilst I acknowledge that you have demonstrated your particular personal and/or professional interest on the issue of race, immigration and multiculturalism, Mr Hareer complains about the particular comments contained in your letter and the circumstances in which the comments were made public and not about your personal and/or professional interest or views generally on immigration policies and related issues.
The information before me indicates that the parties are in dispute on whether or not your comments were made in your academic capacity for genuine academic purposes.
I note you signed off the letter to the
Sun by attaching your name and full academic title as "Associate Professor, Department of Public Law, Parramatta ". However, that statement of your academic status does not determine that your letter was written for a genuine academic purpose. It is necessary to consider the context in which the letter was written and published. In your letter you specifically referred to a story previously published by the Macquarie University Sun on Parramatta 29 June 2005regarding certain refugees from Africabecoming Australian citizens and also certain comments made by the NSW Community Relations Commissioner Stephan Kerkyasharian regarding 's responsibility to help settle these refugees. Accordingly, it appears that the comments made in your letter at the time were volunteered in response to the media reports on the resettlement of Sudanese/black African refugees in Australia and their subsequent Australian citizenship, and not in the context of any prior or ongoing academic discussion. Australia
In my view, comments made for "genuine academic purposes" are generally expected to reflect academic standards such as balanced arguments, acknowledgment of contrary views, be well researched, giving accurate references and expressed in moderate language. Your letter, having identified the subject matter of your comments as Sudanese refugees who have settled in the
– Parramatta area, makes the sweeping generalisations which I have cited above. There generalisations are not supported by any reference to research or statistics which could support a link between, on the one hand, an expanding black population or an expanding Sudanese community in the Parramatta-Blacktown area, and on the other hand, either an increase in crime, violence or other social problems, or any erosion of Anglo-Australian national identity, let alone erosion to the point of "national suicide". Moreover, the letter is not expressed in terms appropriate to discussion for any genuine academic purpose. Blacktown
As I understand your submissions to the Commission, you also claim that your comments were made on a matter of public interest and are protected under section 18D(b) as a statement, publication, discussion or debate made or held for "... any other genuine purpose in the public interest". If I were of the view that your letter was published to the
Sun reasonably and in good faith, I would nonetheless find that I am not satisfied that your letter was published for a genuine purpose in the public interest for the reasons given by Mr Hareer's legal representatives at paragraphs 46 and 51 of their submissions. Parramatta
For the same reasons, I would not be satisfied that your comments constituted a fair comment on a matter of public interest within the meaning of section 18D(c)(ii).
Given all of the above, I am of the view that it is appropriate for the Commission to make an attempt to assist the parties to resolve the matter by conciliation. As previously advised under the HREOCA, I must try to effect a settlement of the complaint that is acceptable to all parties. If the complaint cannot be settled or is terminated on some other ground, the complainant may then make an application to the Federal Court of Australia or the Federal Magistrates Court for the Court to hear the allegation of unlawful discrimination.
I note you have been provided with the Complainant's submissions in which details of what Mr Hareer is seeking to resolve his complaint are outlined at paragraph 59.
Please advise if you are prepared to consider Mr Hareer's resolution proposal to resolve this matter. If not, please advise of any alternatives you are prepared to consider to resolve the complaint. I note you proposed that the Commission conduct a public debate between you and Mr Hareer and/or his legal representatives. I am unable to accept your proposal as such "debate" is not part of the Commission's established conciliation process. It would be appreciated if you could provide your written advice within ten (10) days from the date of this letter.
In the meantime, please continue to contact Mr Hien Le, the officer handling this complaint on my behalf, on (02) 9284 9658 if you wish to discuss any issues in relation to this matter.
John von Doussa QC
31 March 2006
Human Rights and Equal Opportunity Commission
133 Piccadilly Tower Castlereagh Street SydneyNSW 2000 GPO Box 5218 SydneyNSW 2001
Telephone: 02 9284 9600 Facsimile: 02 9284 9611 Complaints Info Line: 1300 656 419 Teletypewriter: 1800 620 241 (toll free)
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