Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COMMISSION OF INQUIRY INTO ANTISEMITISM AT AUSTRALIAN UNIVERSITIES
BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Henderson)
COMMISSION OF INQUIRY INTO ANTISEMITISM AT AUSTRALIAN
UNIVERSITIES BILL 2024
OUTLINE
The Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 is a Bill for an
Act to establish a Commission of inquiry into antisemitism at Australian universities.
There has been substantial antisemitism on campus in Australia for decades, stretching back
decades. An August 2023 report found that almost two-thirds of Australia Jewish university
students had experienced antisemitism on campus.
However, since the 7 October 2023 terrorist attacks by Hamas in Israel, antisemitism across the
country and particularly on university campuses has reached unprecedented levels. Some of that
antisemitism has been undirected and expressed through protests; in other instances, Jewish staff
and students have been directly harassed and intimidated on campus.
University authorities have consistently failed to adequately deal with this issue, both before and
since 7 October 2023. This is clearly a broad cultural problem, as it is occurring at all Australian
universities over many years.
This Bill would establish a Commission of inquiry with essentially identical powers to the powers
of a Royal Commission. This is crucial to ensure that the Commission of inquiry can effectively
probe the rise of antisemitism on campus in Australia. This is because the Commission of inquiry
will be led by an independent, respected jurist with the power to grant privileges and immunities,
hear evidence confidentially without witnesses needing to fear reprisals, and be assisted by skilled
silks.
The Commission of inquiry would exclusively focus on antisemitism on university campuses in
Australia. It would not extend to other aspects of Australian life, except to the extent that it bears on
antisemitism at universities.
FINANCIAL IMPACT
The bill will have no financial impact. Expenditure for the purposes of this Act will be made from
funds already appropriated by the Parliament.
NOTES ON CLAUSES
Clause 1 -- Short Title
1. Clause 1 sets out how the Act is to be cited, that is, as the Commission of Inquiry into
Antisemitism at Australian Universities Act 2024.
Clause 2 -- Commencement
2. Clause 2 provides a table that makes clear the whole Act will commence on the day after the
Act receives the Royal Assent.
Clause 3 - Simplified outline of this Act
3. Clause 3 contains a simplified outline of the Bill. It is designed to assist users to understand
the purpose of the Bill but is not comprehensive.
Clause 4 -- Definitions
4. Clause 4 provides the definitions used in the Act.
Term Definition
Australian university Has the same meaning as in the Higher Education
Support Act 2003
Commissioner Means a person appointed under clause 5
Commission of inquiry Means the inquiry conducted, or to be conducted, by a
person appointed under clause 5
Department employee Means an APS employee in the Department
Judge means a current or former:
(a) Justice of the High Court; or
(b) Judge or Justice of a court created by the
Parliament; or
(c) Judge of the Supreme Court of a State or
Territory
Listed terrorist organisation Has the same meaning as in Part 5.3 of the Criminal
Code
Royal Commission Has the same meaning as in the Royal Commissions
Act 1902
Rules Means the rules made under clause 15
Secretary Means the Secretary of the Department
5. 'Australian university' as defined in the Higher Education Support Act 2003 has the
following meaning:
Australian university means a *registered higher education provider:
(a) that, for the purposes of the *TEQSA Act, is registered in a provider category that
permits the use of the word "university"; and
(b) that:
(i) is established by or under, or recognised by, a law of the Commonwealth, a
State or a Territory; or
(ii) is registered as a company under Part 2A.2 of the Corporations Act 2001.
6. Adopting this definition of 'Australian university' forms the constitutional basis for the Bill,
as all relevant universities will be established by a Commonwealth, State, or Territory law,
or will be constitutional corporations for the purposes of s 51(xx) of the Constitution.
Clause 5 -- Appointment of Commissioner
7. Subclause 5(1) requires the Minister to appoint a Judge to be the Commissioner of the
inquiry via a notifiable instrument. That Judge must be a current or former Judge of a
Supreme Court or the Federal Circuit and Family Court, Federal Court or High Court.
8. As stated by paragraphs 5(1)(a)-(b), the Commission of inquiry should inquire into, and
make recommendations regarding, the matters set out in clause 6.
9. Subclause 5(2) specifies that the Commissioner's appointment would only take effect on the
day specified in the notifiable instrument.
Clause 6 -- Matters for the Commissioner
10. Clause 6 sets out the matters which the Commission will report into, under the leadership of
the Commissioner.
Subclause 6(1)
11. For the purposes of paragraph 5(1)(a), subclause 6(1) directs the Commission to inquire into
the incidence of antisemitic activity on Australian university campuses. That includes but is
not limited to:
(a) harassment, intimidation or violence, or
(b) advocacy or glorification of violence or
(c) support for listed terrorist organisations.
That list is not exclusive, so the Commission can consider forms of antisemitic activity
which do not fall within those categories, or which span those categories.
12. Under subclause 6(1), the Commission must inquire into antisemitic activity that occurred
both before and after 7 October 2023. The Commission's inquiries should not be limited to
any one particular time period.
13. For the purposes of subclause 6(1) 'advocacy or glorification of violence' is intended to
mean advocacy or glorification of violence against Jews. That includes both Jews on the
campus and Jews more broadly. It is not intended for the Commissioner to inquire into
advocacy or glorification of violence of other kinds, except for comparative purposes.
14. For the purposes of subclause 6(1), 'support for listed terrorist organisations' means terrorist
organisations listed as such by Australia which are ideologically opposed to Jews. That
includes Hamas, Hizballah, the National Socialist Order, and Palestinian Islamic Jihad. It is
not intended for the Commissioner to inquire into support for listed terrorist organisations of
other kinds, except for comparative purposes.
Subclause 6(2)
15. For the purposes of paragraph 5(1)(a), subclause 6(2) directs the Commission to inquire into
the responses of Australian universities to the rise of antisemitism on Australian campuses.
That should include inquiring into whether the actions taken by the bodies set out in the Bill
to protect Jewish students, academics, staff and visitors on campus have been adequate.
16. Including whether the actions taken by university regulators, university leaders (including
governing bodies and Vice-Chancellors), student and staff representative bodies, student
clubs and organisations, and other groups on campus to protect Jewish students, staff and
visitors have been adequate.
17. Consistently with subclause 6(1), the Commission should inquire into the rise of
antisemitism both before and after 7 October 2023.
18. For the purpose of considering the actions of other groups on campus, the Commissioner
may consider the actions of both groups affiliated with the university and groups which are
simply present on the campus.
19. Student and staff representative bodies include internal representative bodies which are
unique to individual campuses and representative bodies which represent staff and students
across universities. That is intended to include industrial organisations such as the National
Tertiary Education Union and other unions which have a presence on university campuses.
It is also intended to include student representative councils, including the National Union of
Students.
20. What constitutes an adequate response for the purpose of this subclause is a matter for the
Commissioner.
21. Paragraph 6(2)(b) gives the Commissioner broad discretion to inquire into other matters
which may rise in the course of the inquiry which become relevant.
Subclause 6(3)
22. Subclause 6(3) sets out the matters that the Commission is to specifically consider. It is
intended that the Commissioner will consider and report on each of these matters
individually, that investigation of those matters will form part but not all of its inquiry into
subclauses 6(1) and 6(2), and that investigation of these matters will inform the
Commissioner's recommendations.
23. Paragraph 6(3)(a) requires the Commission to specifically inquire into whether universities
have taken appropriate steps to recognise the specific and unique nature of antisemitism,
understand how it manifests in modern times, and publicly reject it in all its forms.
24. Ways in which universities may have done so includes, but is not limited to, expressing
clear opposition to antisemitism both generally and in its specific forms in policy
publications and public statements; recognising in policies, documentation and practice, that
antisemitism is a distinct and dangerous phenomenon which can have broader societal
consequences, independently of general questions of discrimination on the ground of race,
religion and other protected attributes; written and verbal communications with staff and
students; and statements to media. The manifestation of antisemitism in modern times
should include, but is not limited to, such things as the examples set out in the International
Holocaust Remembrance Alliance definition (as addressed below).
25. Paragraph 6(3)(b) requires the Commission to consider whether universities have adopted
and implemented an appropriate definition of antisemitism for all purposes such as the
International Holocaust Remembrance Alliance definition. The IHRA definition of
antisemitism is "Antisemitism is a certain perception of Jews, which may be expressed as
hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed
toward Jewish or non-Jewish individuals and/or their property, toward Jewish community
institutions and religious facilities." The IHRA definition also provides a series of examples
of the modern manifestation of antisemitism which should be included. This paragraph is
designed to direct the Commissioner's attention to a tangible step which universities might
have taken to recognise the significance and uniqueness of antisemitism as a distinct form of
discrimination on campus.
26. Paragraph 6(3)(c) requires the Commission to consider whether universities have put in
place arrangements to deal with antisemitism on campus, including the adequacy of
university policies and rules, the nature and extent of their enforcement, disciplinary
procedures, complaints-handling processes and any differences between the approach to
antisemitism and other forms of discrimination. It is intended that the Commissioner will
consider each of the matters listed in this paragraph, but the Commissioner may consider
additional matters if they deem it appropriate. In considering the complaints handling
process, the Commissioner should consider whether such a process exists and, if so, whether
the processes have the confidence of Jewish students and staff.
27. The Commissioner should also consider whether incidences of complaints and antisemitic
activities are adequately recorded.
28. Paragraph 6(3)(d) requires the Commission to consider whether universities have put in
place adequate measures for the security and safety of Jewish students, academics, staff and
visitors, including in relation to physical safety, the display of cultural and religious
symbols, and actions taken by universities to bar or expel people from campus for
antisemitic activity. It is intended that the Commissioner will consider each of the matters
listed in this paragraph, but the Commissioner may consider additional matters if they deem
it appropriate.
29. For the purposes of paragraph 6(3)(d), cultural and religious symbols could include, but is
not limited to, a Star of David, a menorah, a hand of Miriam, a chai symbol, a kippah or
displaying a Chanukiah or Israeli flag. The display of cultural and religious symbols in the
context of this paragraph should be taken to extend to religious acts such as praying or
holding a Shabbat dinner.
30. Paragraph 6(3)(e) requires the Commission to consider whether universities have adopted
policies and procedures to prevent staff or students engaging in antisemitic discrimination or
vilification. In doing so, the Commissioner should consider whether universities have
adopted policies and procedures to prevent staff or students engaging in de facto boycotts
against collaborating with Jewish or Israeli academics and institutions, or Jewish or Israeli
students or staff. The Commissioner should also consider policies and procedures that relate
to other forms of antisemitic discrimination or vilification as they see fit.
31. Paragraph 6(3)(f) requires the Commissioner to consider whether universities have taken
steps to ensure that antisemitic content is not included in course and teaching materials, or
delivered during lectures, tutorials and other classes. For the purpose of this paragraph,
'other classes' includes, but is not limited to, laboratories and seminars. For the purposes of
this paragraph, who is taken to 'deliver' materials should not be limited to paid staff
members of the university and may include visiting academics.
32. Paragraph 6(3)(g) requires the Commissioner to consider whether universities have provided
adequate support arrangements for staff and students experiencing antisemitism, both on and
off campus. Under this paragraph 'both on and off campus' refers to the location of the
antisemitism rather than the location of the support arrangements. What constitutes
'adequate' arrangements should be considered with reference to the degree of antisemitism
occurring at any one time, what is culturally appropriate support, and the approach taken to
support students who experience other forms of antisemitism, among other matters the
Commissioner sees fit to consider.
Subclause 6(4)
33. Subclause 6(4) is not designed to limit, or dictate, the range of matters on which the
Commission might make recommendations. However, it is designed to require the
Commissioner to at least consider these matters in making their recommendations.
34. Paragraph 6(4)(a) states the Commission should have regard to any institution-specific or
sector-wide policy changes necessary or appropriate to combat antisemitism. For the
purposes of this paragraph, 'policy' includes the policies of universities, university
governing bodies, student and staff representative bodies, and student clubs and
organisations.
35. Paragraph 6(4)(b) states the Commission should have regard to any legislative or regulatory
changes which are necessary or appropriate to better protect Jewish students, staff and
visitors on university campuses from antisemitism, including clarifying the power of
universities to expel and exclude people from campus. The standard for determining what
defines a necessary or appropriate measure is a matter for the Commissioner.
36. Paragraph 6(4)(c) states that the Commission should have regard to any arrangements for
educating proponents of antisemitism against this form of discrimination. For the purposes
of this paragraph, education may be formal or informal.
37. Paragraph 6(4)(d) states that the Commission should have regard to any powers of
ministerial intervention that may be necessary or appropriate to ensure that antisemitism on
campus is addressed appropriately. The Commissioner may have regard to intervention by
any Minister which they see fit to include.
Clause 7 -- Hearings
38. Subclause 7(1) permits the Commissioner to hold hearings as part of the inquiry. It is
expected that hearings would be held, to ensure the Commission of inquiry can effectively
report on the terms of reference.
39. Subclause 7(2) permits the hearings to be held wherever the Commissioner deems
appropriate. That may be anywhere within Australia or overseas. It is not required that the
hearings be held in multiple locations, or that they must only be held in one location.
40. Subclause 7(3) clarifies that the Commissioner will determine how the proceedings are
conducted. The Commissioner is only subject to restrictions or directions which are set out
in the Bill.
Clause 8 -- Commissioner not bound by the rules of evidence
41. Clause 8 provides that the Commissioner is not bound by the rules of evidence and may
inform himself or herself on any matter as he or she thinks fit. For the purpose of this
section, this extends to common law rules, the Evidence Act 1995 (Cth), and all State and
Territory Evidence Acts.
42. This is to ensure that the Commissioner has the flexibility to effectively collect information
to inform the Commission of inquiry.
43. Clause 8 further supports the freedom given to the Commissioner in subclause 7(3).
Clause 9 -- Department employees assisting the Commissioner
44. Subclause 9(1) provides for the Secretary of the Department to make Department employees
available to assist the Commission of inquiry. It is expected that would occur subject to the
normal processes of secondment which already exist in the Commonwealth public service.
45. Subclause 9(2) confirms that those employees are subject to the directions of the
Commissioner for the period of their time working for the enquiry.
Clause 10 -- Disclosure of personal information
46. Clause 10 means that Department employees may disclose personal information to the
extent that doing so is necessary to facilitate the conduct of the inquiry, without breaching
privacy obligations set out in the Privacy Act 1988 (Cth).
47. For the purposes of this Act, 'personal information' has the meaning set out in the Privacy
Act 1988 (Cth). That meaning is as follows:
personal information means information or an opinion about an identified
individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Clause 11 -- Application of the Royal Commissions Act 1902
48. Subclause 11(1) makes clear that the Royal Commissions Act 1902 applies to this
Commission of inquiry and the Commissioner as if this inquiry was a Royal Commission
and the Commissioner was a member of a Royal Commission. This applies to all sections of
the Royal Commissions Act 1902 and extends to every aspect of the functioning of the
inquiry.
49. Paragraph 11(1)(c) also provides that the Crown is bound in each of its capacities in relation
to those parts of the Royal Commissions Act 1902 that apply. This provision ensures that the
Commission of inquiry is not restricted in the way it deals with agencies or employees of the
Crown, including in their power to call employees of the Crown as witnesses.
50. Subclause 11(2) makes clear that paragraph 11(1)(c) does not mean that the Crown would be
liable to be prosecuted for an offence under the applied provisions of the Royal
Commissions Act 1902.
51. Subclauses 11(3)-(5) of the Bill are designed to reinforce the deeming done by
subclause 11(1), to avoid any interpretation which might exclude any aspect of the Royal
Commissions Act 1902 from applying.
Clause 12 -- Application of laws relating to disclosure
52. Subclause 12(1) provides that Commonwealth laws relating to disclosure of information
regarding a Royal Commission are to apply to the Commission of inquiry in the same way.
The purpose of this provision is to ensure that the Commission of inquiry's powers to obtain
information are equivalent to those available to a Royal Commission.
53. Subclause 12(2) notes that paragraph 7(1)(a) of the Privacy Act 1988 applies to the
Commission of inquiry in the same way that it applies to a Royal Commission.
Paragraph 7(1)(a) states that "Except so far as the contrary intention appears, a reference in
this Act (other than section 8) to an act or to a practice is a reference to: (a) an act done, or a
practice engaged in, as the case may be, by an agency (other than an eligible hearing service
provider), a file number recipient, a credit reporting body or a credit provider other than: ...
(v) a Royal Commission; or (vi) a Commission of inquiry".
54. The effect of subclause 12(2) is to confirm that, like Royal Commissions, the Commission
of inquiry is not bound by the Privacy Act 1988.
55. Additionally, the overall effect of this clause is to further strengthen the deeming done in
clause 11 by aligning the exceptions which apply to Royal Commissions with the exceptions
which apply to the Commission of inquiry.
Clause 13 -- Application of the Archives Act 1983
56. Clause 13 states that the Archives Act 1983 applies to the Commission of inquiry in the
same way that it applies to a Royal Commission. Clause 13 is intended to ensure that, as
with a Royal Commission, appropriate arrangements are in place to manage the records of
the Commission of inquiry.
57. Additionally, the overall effect of this clause is to further strengthen the deeming done in
clause 11 by aligning the exceptions which apply to Royal Commissions with the exceptions
which apply to the Commission of inquiry.
Clause 14 -- Application of the Freedom of Information Act 1982
58. Clause 14 states that the Freedom of Information Act 1982 applies to the Commission of
inquiry in the same way that it applies to a Royal Commission. Clause 14 is intended to
ensure that, as with a Royal Commission, the Commission of inquiry is excluded from the
operation of the Freedom of Information Act 1982.
59. Additionally, the overall effect of this clause is to further strengthen the deeming done in
clause 11 by aligning the exceptions which apply to Royal Commissions with the exceptions
which apply to the Commission of inquiry.
Clause 15 -- Rules
60. Subclause 15(1) provides for the Minister to makes rules prescribing matters required or
permitted by the Act to be prescribed, or which are necessary or convenient for the
Commission of inquiry to be conducted. The purpose of this provision is to enable the
Minister to give effect to the Bill, particularly subclause 11(3).
61. Those rules can be made by the Minister alone and do not require further approval by
Parliament or the Executive.
62. Subclause 15(2) makes explicit that those rules cannot create an offence or civil penalty,
provide powers of arrest or detention, or entry, search or seizure, impose a tax, set an
amount to be appropriated from the Consolidated Revenue Fund under an appropriation in
the Act, or directly amend the text of this Act.
63. Subclause 15(2) does not impact the power of the Commissioner to issue search or seizure
orders, under the powers prescribed by subclause 11(1).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Commission of Inquiry into Antisemitism at Australian Universities Bill 2024
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the bill
The Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 will establish a
Commission of inquiry into antisemitism at Australian universities.
The Commission will be led by a Commissioner. The Commissioner will have the same powers as a
Commissioner in a Royal Commission.
The Royal Commissions Act 1902 will apply in relation to the Commission of inquiry as if the
inquiry were a Royal Commission.
Human rights implications
The measures in the Bill would positively engage the following human rights:
• The obligation to eliminate racial discrimination in Article 2 of the International Convention
on the Elimination of all Forms of Racial Discrimination (ICERD);
• The right to an education protected under Article 5 of the ICERD and Article 13 of the
International Covenant on Economic, Social, and Cultural Rights (ICESC);
• The role of education in combatting racial discrimination in Article 7 of the ICERD.
Obligation to eliminate racial discrimination
Article 2 of ICERD obliges State Parties to prohibit and bring to an end racial discrimination. It also
directs State Parties to take special and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to them.
Recommendations made by the Commissioner would be designed to reduce antisemitism on
campus and to protect Jewish staff and students. Accordingly, this Bill would advance human
rights.
Right to an education
Article 5 of ICERD requires State Parties to prohibit and eliminate racial discrimination in all its
forms in order to guarantee the right of everyone to enjoy economic, social and cultural rights,
including the right to education and training.
Similarly, Article 13 of the ICESC recognises the right of everyone to an education, regardless of
their racial, ethnic, or religious group.
In August 2023, the Social Research Centre and the Australasian Union of Jewish Students released
the Australian Jewish University Experience Survey. The survey revealed that, over the previous
year, 19% of Jewish university students had stayed away from campus at some point because of
antisemitism. Accordingly, for those students, antisemitism on campus is compromising their
access to education.
Recommendations made by the Commissioner would be designed to reduce antisemitism on
campus. Accordingly, this would increase the access of Jewish students to education. Therefore,
this Bill would advance human rights.
The role of education in combatting racial discrimination
Article 7 of ICERD acknowledges the role of education in combatting racism.
The terms of reference direct the Commissioner to consider the extent to which universities are
providing education to their university community about antisemitism and how to combat it.
Accordingly, this Bill would advance human rights.
Conclusion
This Bill is compatible with human rights because it advances the protection of human rights.
Senator Henderson