HREOC Annual Report 2003-2004 : Chapter 1 : The Commission

Human Rights and Equal Opportunity Commission

Annual Report 2003 - 2004

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Chapter 1: The Commission

Vision

An Australian society in which the human rights of all are respected, protected and promoted.

Mission

To provide leadership on human rights through:

building partnerships with others
having a constructive relationship with government
being responsive to the community
promoting community ownership of human rights.

To ensure that Australians:

have access to independent human rights complaint handling and public inquiries processes
benefit from human rights education, promotion and monitoring and compliance activities.

As an effective organisation, we are committed to:

unity of purpose
valuing our diversity and creativity
the pursuit of best practice.

Structure

The Commission is a national independent statutory body established under the Human Rights and Equal Opportunity Commission Act 1986. It has a President and five Commissioners. The five positions are currently held by three persons. Please refer to the organisational chart on page 12 for further information.

President - The Hon. John von Doussa, QC

The Hon. John von Doussa was appointed President of the Human Rights and Equal Opportunity Commission on 1 May 2003 for a five year term.

At the time of his appointment he was a Judge of the Federal Court of Australia, an appointment he had held since 1988. He was also the President of the Australia Competition Tribunal, a Presidential Member of the Administrative Appeals Tribunal, an Additional Judge of the Supreme Court of the Australian Capital Territory, and a Judge of the Industrial Relations Court of Australia. From 1992 until shortly before his appointment he was also a part-time Commissioner of the Australian Law Reform Commission. From 1986 to 1988 he was a Judge of the Supreme Court of South Australia.

Before his appointment as a Judge he was a Queens Counsel practicing mainly in South Australia, and had served terms as the President of the Law Society of South Australia, and Vice-President of the Law Council of Australia.

In South Australia he had a close interest in the organisation and provision of practical legal training for newly qualified graduates in law. At different times he was the chair of advisory committees for the graduate diploma courses in legal practice conducted by the University of South Australia and by the Law Society of South Australia. In 1996 he was awarded an Honorary Doctorate of the University of South Australia in recognition of that involvement. He received a Centenary Medal in 2003.

In 1993 he sat as an Acting Judge in the Supreme Court of Vanuatu. In 1997 he became a member of the Court of Appeal of Vanuatu. In 2003 he was appointed a non-resident member of the Supreme Court of Fiji. He continues to hold these appointments.

Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner - Dr William Jonas, AM

Dr William Jonas is a Worimi man from the Karuah River region of NSW.

Until his appointment as Commissioner, on 6 April 1999 for five years, Dr Jonas was Director of the National Museum of Australia. From 1991-96 he was Principal of the Australian Institute of Aboriginal and Torres Strait Islander Studies in Canberra. Before becoming Director of Aboriginal Education at Newcastle University in 1990, he was a lecturer in geography at the University of Newcastle and before that at the University of Papua New Guinea.

In the mid 1980s, Dr Jonas was a Royal Commissioner with the late Justice Jim McClelland on the Royal Commission into British Nuclear Tests in Australia. He has held positions on the Immigration Review Tribunal, the Australian Heritage Commission and the Joint Ministerial Taskforce on Aboriginal Heritage and Culture in NSW.

Dr Jonas holds a Bachelor of Arts degree from the University of NSW, a Master of Arts degree from the University of Newcastle and a PhD from the University of Papua New Guinea.

Dr Jonas has been acting Race Discrimination Commissioner since September 1999.

The five year term as Aboriginal and Torres Strait Islander Social Justice Commissioner expired on 5 April 2004. The Attorney-General asked Dr Jonas to extend his term of office of Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner for a period of three months (from 6 April 2004 and 10 April respectively).

Mr Tom Calma succeeded Dr Jonas as the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner and commenced on 12 July 2004.

Human Rights Commissioner and acting Disability Discrimination Commissioner - Dr Sev Ozdowski, OAM

Dr Sev Ozdowski took up his appointment as Human Rights Commissioner in December 2000 for a five year term. Previously, Dr Ozdowski was Chief Executive of South Australia's Office of Multicultural and International Affairs. Dr Ozdowski has a long term commitment to human rights and his relationship with the Human Rights Commission dates back to the original Commission of the early 1980s. He is the author of many papers on sociology of law, human rights, immigration and multiculturalism. Born in Poland in 1949, Dr Ozdowski migrated to Australia in 1975. He has held senior positions in the Federal portfolios of the Prime Minister and Cabinet, Attorney-General's and Foreign Affairs and Trade. He has also worked as Secretary of the Human Rights Commission Inquiry into the Migration Act 1958 and for the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade.

Dr Ozdowski has a Master of Laws and Master of Arts in Sociology from Poznan University, Poland, and a PhD in Sociology of Law from the University of New England, Armidale, New South Wales. He was awarded a Harkness Fellowship in 1984 for post-doctoral work on race relations, international human rights and immigration law and public administration - studies that took him from Harvard University (Cambridge, MA) to Georgetown University (Washington DC) and the University of California (Berkeley, California).

Dr Ozdowski has been acting Disability Discrimination Commissioner since December 2000.

Sex Discrimination Commissioner - Ms Pru Goward

Journalist, broadcaster and commentator Pru Goward was appointed Federal Sex Discrimination Commissioner for a five year term from 30 July 2001.

Ms Goward has worked closely on issues of women's rights for several years, heading the Federal women's policy advisory unit, the Office of the Status of Women, from 1997 to 1999. She was appointed First Assistant Secretary of the Office, which reports directly to the Office of Prime Minister and Cabinet, after working as a national affairs journalist and political commentator for 19 years.

At the Office of the Status of Women, Ms Goward presided over the introduction of the first national program for the prevention of domestic violence - the largest program run by OSW with a budget of $50 million. She also oversaw the introduction of reform to superannuation laws for divorced couples.

Ms Goward completed an Economics degree with Honours from the University of Adelaide while teaching high school in Adelaide during the 1970s. She later tutored at the University while conducting Masters research. Over the past 10 years she has also run her own media management company, was a freelance newspaper and magazine columnist and a part-time lecturer in Broadcast Journalism at the University of Canberra.

Just prior to taking up the role of Sex Discrimination Commissioner, she was National Director of the Australian Property Institute. Ms Goward is also on the board of the John Curtin School of Medical Research and the Neuroscience Institute for Schizophrenia and Allied Disorders. She is Official Patron of the ANU Australian Rules Football Club.

Pru Goward has also been appointed as Commissioner responsible for Age Discrimination.

Legislation

The Commission is responsible for administering the following Acts:

Human Rights and Equal Opportunity Commission Act 1986
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Disability Discrimination Act 1992
Age Discrimination Act 2004.

Functions performed under these Acts are vested in the Commission as a collegiate body, in the President or individual members of the Commission or in the federal Attorney-General.

Other legislation administered through the Commission includes functions under the Native Title Act 1993 performed by the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Sex Discrimination Commissioner has functions in relation to federal awards and equal pay under the Workplace Relations Act 1996.

Human Rights and Equal Opportunity Commission Act

The Human Rights and Equal Opportunity Commission Act 1986 established the Commission and outlines the Commission powers and functions. Human rights are strictly defined, and only relate to the international instruments scheduled to, or declared under, the Act. They are the:

International Covenant on Civil and Political Rights
Convention on the Rights of the Child
Declaration on the Rights of the Child
Declaration on the Rights of Disabled Persons
Declaration on the Rights of Mentally Retarded Persons
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
Convention Concerning Discrimination in Respect of Employment and Occupation.

Racial Discrimination Act

The Racial Discrimination Act 1975 gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

Its main aims are to:

promote equality before the law for all persons, regardless of their race, colour or national or ethnic origin
make discrimination on the basis of race, colour, descent or national or ethnic origin, unlawful
provide protection against racial hatred.

Sex Discrimination Act

The Sex Discrimination Act 1984 gives effect to Australia's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women and certain aspects of the International Labour Organisation (ILO) Convention 156.

Its main aims are to:

promote equality between men and women
eliminate discrimination on the basis of sex, marital status or pregnancy, and family responsibilities
eliminate sexual harassment at work, in educational institutions, in the provision of goods and services, accommodation and in the delivery of Commonwealth programs.

Disability Discrimination Act

The objectives of the Disability Discrimination Act 1992 are to:

eliminate discrimination against people with disabilities as far as is possible
promote community acceptance of the principle that people with disabilities have the same fundamental rights as all members of the community
ensure as far as practicable that people with disabilities have the same rights to equality before the law as other people in the community.

Age Discrimination Act

The objectives of the Age Discrimination Act 2004 are to:

promote equality before the law for all persons regardless of their age
eliminate discrimination against persons on the ground of age in many areas of public life such as employment, education and the provision of services or facilities
change negative stereotypes about older people.

Functions and powers

The Commission's responsibilities fall within four main areas:

Public awareness and education.
Unlawful discrimination and human rights complaints.
Human rights compliance.
Policy and legislative development.

In order to fulfil its obligations, the Commission:

Fosters public discussion, and undertakes and coordinates research and educational programs to promote human rights and eliminate discrimination in relation to all Acts.
Investigates complaints of alleged unlawful discrimination pursuant to the Age Discrimination Act, Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act, and attempts to resolve these matters through conciliation where appropriate. The President may terminate a complaint of alleged unlawful race, sex or disability discrimination if, for example there is no reasonable prospect of settling the complaint by conciliation or the complaint is lacking in substance. If a complainant, whose complaint has been terminated, wants the complaint heard and determined by the Courts they must lodge an application to the Federal Court of Australia or the Federal Magistrates Court within 28 days of a Notice of Termination issued by the President.
Inquires into acts or practices that may be contrary to a human right or that may be discriminatory pursuant to the Human Rights and Equal Opportunity Commission Act. If the complaint is unable to be resolved through conciliation and is not discontinued for other reasons the President may report on the case and make particular recommendations. The Report is tabled in Parliament.
May advise on legislation relating to human rights and monitor its implementation; may review existing and proposed legislation for any inconsistency with human rights or for any discriminatory provision which impairs equality of opportunity or treatment in employment or occupation; may examine any new international instruments relevant to human rights and advise the federal Government on their consistency with other international treaties or existing Australian law; and may propose laws or suggest actions the government may take on matters relating to human rights and discrimination.

In order to carry out these functions the Commission is empowered under all Acts (unless otherwise specified) to:

Refer individual complaints to the President for investigation and conciliation.
Report to the government on any matters arising in the course of its functions.
Establish advisory committees.
Formulate guidelines to assist in the compliance by organisations and individuals of the requirements of human rights and anti-discrimination legislation and conventions.
Intervene in court proceedings involving human rights matters.
Grant exemptions under certain conditions (Age, Sex and Disability Discrimination Acts).
Conduct inquiries into issues of major importance, either on its own initiative, or at the request of the Attorney-General.
Examine enactments.

Specific functions of the President and Commissioners

In addition to the broad functions outlined above, the President, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Sex Discrimination Commissioner have specific responsibilities.

President

The President is the senior member of the Commission, responsible for managing its administrative affairs.

One of the major functions of the President relates to the complaint handling function of the Commission.

All complaints to the Commission alleging unlawful discrimination must be referred to the President. The President is required to inquire into each complaint and attempt to conciliate it. If the complaint is not able to be conciliated, the President is required to terminate it on one or other of the grounds specified in the Human Rights and Equal Opportunity Commission Act 1986. Once a complaint is terminated, the complainant may apply to the Federal Court of Australia or the Federal Magistrates Court seeking a remedy to the alleged unlawful discrimination.

In addition, the President is required to perform the Commission's function of inquiring into complaints made under the Human Rights and Equal Opportunity Commission Act 1986 alleging breaches of human rights or discrimination in employment. As with unlawful discrimination complaints, the President attempts to resolve those complaints through conciliation. If the President has not declined the complaint and it is unable to be resolved through conciliation, and the President is satisfied after inquiry that there has been a breach of human rights or discrimination in employment has occurred, the President reports on the matter to the Commonwealth Attorney-General. The President can also make recommendations to address any damage suffered by the complainant. The Attorney-General is then required to table the report in Parliament within 15 sitting days of receipt of the report. The reporting process does not involve the President or delegate making findings that the respondent has acted unlawfully. The President or delegate only has the power to make recommendations in any reports to the Attorney, meaning that a successful complainant does not obtain a binding remedy.

The Act permits the President to delegate these complaint-related functions.

Aboriginal and Torres Strait Islander Social Justice Commissioner

The Aboriginal and Torres Strait Islander Social Justice Commissioner, under the Human Rights and Equal Opportunity Commission Act 1986, prepares an annual report on the exercise and enjoyment of human rights of Indigenous people, and undertakes social justice education and promotional activities.

The Commissioner also performs separate reporting functions under the Native Title Act 1993. This includes preparing an annual report on the operation of the Act and its effect on the exercise and enjoyment of human rights of Indigenous people. The Commissioner also reports, when requested by the Minister, on any other matter relating to the rights of Indigenous people under this Act.

Sex Discrimination Commissioner

The Workplace Relations Act 1996 gives the Sex Discrimination Commissioner the power to initiate and refer equal pay cases to the Industrial Relations Commission.

The Minister

The Attorney-General, the Honourable Philip Ruddock MP, is the Minister responsible in Parliament for the Commission. He has a number of powers under the Human Rights and Equal Opportunity Commission Act 1986.

The most significant are:

to make, vary or revoke an arrangement with states or territories for the performance of functions relating to human rights or to discrimination in employment or occupation
to declare, after consultation with the states, an international instrument to be one relating to human rights and freedoms for the purposes of the Act
to establish an advisory committee (or committees) to advise the Commission in relation to the performance of its functions. The Commission will, at his request, report to him on Australia's compliance with International Labour Organisation Convention 111 and advise him on national policies relating to equality of opportunity and treatment in employment and occupation.

Outcomes structure

The Commission has one outcome: