Submission of the Human Rights And Equal Opportunity Commission
to the Senate Legal And Constitutional Legislation Committee
on the Human Rights Legislation Amendment Bill (No.2) 1998
1.1 The amendments effected by the Human Rights Legislation Amendment Bill (No.2) 1998 (Cth) (AHRLAB No.2") can be divided into two categories:
1.1.1 fundamental core amendments that impact upon the independence, integrity and effectiveness of the Commission, namely:
(a) the removal of the Commission's power to intervene in proceedings before the Courts; and
(b) the lack of transitional provisions for current Commissioners to transfer to the positions of Deputy Presidents; and
1.1.2 amendments that impact upon the internal procedural operation of the Commission and the public's understanding and perception of the Commission but are not integral to the Commission's independence, namely:
(a) the restriction on the President's power to delegate complaint handling powers under Human Rights and Equal Opportunity Commission 1986 (Cth) ("HREOCA") to Deputy Presidents;
(b) the structure of the Commission;
(c) the new nomenclature for the Commission and Deputy Presidents;
(d) specific amendments to HREOCA, the Racial Discrimination Act 1975 (Cth) ("RDA") and Sex Discrimination Act 1984 ("SDA"); and
(e) the separation of the office of the Privacy Commissioner from the Commission.
1.2 This submission strongly opposes the proposed amendments on the matters referred to in paragraph 1.1.1 above and makes recommendations accordingly. This submission also provides comments for the Committee's consideration in relation to the matters referred to in paragraph 1.1.2 above.
2. FUNDAMENTAL CORE CHANGES EFFECTED BY HRLAB NO. 2
2.1 The independence of the Commission is at the very core of the Commission's ability to perform (and to be seen to perform) its functions with effectiveness, integrity and impartiality.
2.2 Australia has played the leading role in the promotion of independent national human rights institutions internationally, including in the development of the Principles relating to the Status of National Institutions (the "Paris Principles") (1) that set the international minimum standard for those institutions. It is the essence of the Paris Principles that such a national human rights institution maintains and is permitted to maintain the independence and mandate that is essential for it to perform its functions and operate in an uncompromised manner.
2.3 For many years the Australian Government has been the principal sponsor of the annual resolutions of the UN Commission on Human Rights and the UN General Assembly that re affirm the need for national institutions to comply with the guarantees of independence contained in the Paris Principles. It has been responsible for the drafting, negotiation and presentation of these resolutions to the UN Commission and to the General Assembly.
2.4 The Australian Government and the Commission are also world leaders in working cooperatively with other countries to establish and strengthen independent national human rights institutions in accordance with the Paris Principles.
2.5 The Australian Government has supported the establishment of the Asia Pacific Forum of National Human Rights Institutions for this purpose and provided funding for the Forum secretariat. Through the Forum it supports multilateral and bilateral programs of technical assistance for this purpose. It has provided funding towards the establishment or strengthening of institutions in South Africa, Sri Lanka, Bangladesh, Mongolia and the Philippines. The Minister for Foreign Affairs recently announced a $2m program of technical assistance to the Indonesian Human Rights Commission. The success of this work rests on Australia's integrity in having established its own national human rights institution that is truly independent, effective and credible. (2)
2.6 It is, therefore, a matter of great concern to the Commission that two facets of the amendments contained in HRLAB No. 2 compromise the Commission's independence and integrity by:
(a) placing conditions on the Commission's power to intervene in proceedings before the Courts, and
(b) failing to provide transitional provisions in relation to present Commissioners being Deputy Presidents in the new Human Rights and Responsibilities Commission.
3. CONDITIONS PLACED BY HRLAB NO. 2 ON THE COMMISSION'S POWERS TO INTERVENE
3.1 Pursuant to legislative provisions in the HREOCA, RDA, SDA and Disability Discrimination Act 1992 (Cth) ("DDA"), the Commission has the function to seek leave to intervene in matters before the Courts.(3)
3.2 The Commission has used the function sparingly, seeking to intervene only where it considered a case raised a significant human rights or anti-discrimination issue that the parties would not present to the Court adequately or at all.
3.2 The Commission has sought and been granted leave to intervene in matters before the High Court, Federal Court, Family Court or a state Court on approximately 17 occasions in the 11 years that the Commission has exercised the function.
3.3 The most notable cases where the Commission has been granted leave to intervene and has provided the Court with substantive submissions include:
(a) a number of cases over ten years relating to the rights of the child, including
(i) cases concerning applications to the Family Court for the sterilisation of girls and young women with intellectual disabilities: Re a Teenager (1988) 94 FLR 181; Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 C.L.R 218 (Marion's Case) where the High Court adopted the approach argued by the Commission; Re Marion [No.2] (1994) FLC 92-448; P v. P (1995) FLC 92-615 and Re Katie (1996) FLC 92-659
(ii) Re Michael: John Briton, Acting Public Advocate (Victoria) v. GP & KP (1994) FLC 92-486 concerning the consent required for a child to receive surgical treatment
(iii) ZP v. PS (1994) 68 ALJR 554 concerning the application of the law when a child is abducted from Australia; and
(iv) Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, concerning the best interests of a child in relation to the deportation of a parent, where the Commission's submissions were adopted by the majority of the High Court
(b) a number of cases concerning the rights of immigration detainees and applicants for refugee status, including Wu v. Minister for Immigration and Ethnic Affairs & the Commonwealth of Australia (1996) 64 FCR 245, C, L, J & Z v. Minister for Immigration and Ethnic Affairs, Mr M H Gerkens & Mr J Vrachnas (unreported, O'Loughlin J, 30 March 1995)
(c) Langer v. The Commonwealth (1996) 186 CLR 302 concerning the principle of freedom of political speech and imprisonment for contempt of court
(d) Croome & Anor v. State of Tasmania (1997) 71 ALR 397 concerning the inconsistency between State and federal legislation in relation to consenting adult homosexual activity; and
(e) Kartinyeri & Anor v The Commonwealth of Australia (1997) 152 ALR 540, concerning the validity of federal legislation that may be racially discriminatory, where the Commission's submissions were referred to in three of the four judgements in the High Court.
3.4 HRLAB No.2 has the effect of seriously fettering the Commission's power to seek leave to intervene in proceedings before the Courts by making this power dependent upon the approval of the Attorney-General. (4) In deciding whether to grant such approval, the Attorney-General may (but need not) have regard to whether:
(a) the Commonwealth or a person on behalf of the Commonwealth has already intervened in the proceedings;
(b) in the Attorney-General's opinion, the proceedings may affect to a significant extent the human rights of persons who are not parties to the proceedings;
(c) in the Attorney-General's opinion, the proceedings have significant implications for the administration of the relevant Act and other legislation administered by the Commission; or
(d) in the Attorney-General's opinion, there are special circumstances such that it would be in the public interest for the Commission to intervene.
3.5 The Commission is concerned that the proposed amendment:
(a) usurps the authority of the Court to determine if it shall grant leave to an intervenor by preventing the Commission approaching the Court directly;
(b) raises real issues of conflict of interest given that, at times, the Commonwealth will be a party (usually in the role of respondent) to a matter in which the Commission wishes to intervene. It is inappropriate for a party to have a "gatekeeper" role as to who should be permitted to intervene in a matter in which it is a litigant;
(c) seriously compromises the Commission's independence as it may deny the Commission the opportunity to argue human rights issues before the Courts in cases where the Commonwealth takes a different view to the Commission of Australia's human rights commitments;
(d) overlooks the fact that there may be situations where the Commission may have a very real contribution to make in terms of its expertise and specialisation in human rights even where the Commonwealth may be intervening in the matter; and
(e) raises the possibility of a perception of political control of the Commission, including in cases where the Commission's independent intervention would be most important, ie, where the Commission considers that violation of human rights are at issue.
3.6 The placing of conditions on the Commission's ability to intervene is contrary to the Paris Principles which provide that a national institution vested with competence to promote and protect human rights shall
"freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or any petitioner".
The Commission makes the following recommendations in relation to the amendments contained in HRLAB No.2 that fetter the Commission's intervention powers:
(a) that the status quo prevail and the Commission's intervention power remain unfettered by the need for approval from the Attorney-General; or
(b) if criteria are to be inserted as to when the Commission should seek leave to intervene in a matter, then the criteria should apply to the Commission's consideration of whether it should seek leave and should be without the need for the Attorney-General's approval; and/or
(c) if there is a concern that there may a duplication in resources and submissions if the Commission and the Commonwealth intervene in the same matter then a more appropriate response to any perceived difficulty is the development of written protocol between the Attorney-General and the Commission in relation to the consideration of possible interventions by the Commission so that the Commission and the Commonwealth may co-operate in relation to interventions in a way that avoids any need for a legislative amendment that expressly and contrary to committed principles fetters the Commission's power to intervene.
4. LACK OF TRANSITIONAL PROVISIONS IN RELATION TO PRESENT COMMISSIONERS
4.1 One characteristic of an independent national human rights institutions is that its members are appointed for fixed terms and can only be dismissed before the expiry of those terms for reasons of misconduct, incapacity or bankruptcy. The present legislation reflects this central principle.(5)
4.2 Furthermore, the lack of transitional provisions in relation to Commissioners is contrary to the Paris Principles which require that:
"In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish a specific duration of the mandate...."
4.3 HRLAB No. 2 provides transitional provisions whereby the continuity of the term of the President of the Commission is not affected by HRLAB No. 2(6) and the President of the Commission is automatically re-appointed (with accrued entitlements) as a full-time member of the HRRC. (7)
4.4 HRLAB No. 2 does not provide equivalent transitional provisions for the current Commissioners to transfer to Deputy President positions. The absence of the transitional provisions affects the security of tenure of the current Commissioners which is integral to the nature of their appointments.
4.5 It should also be noted that when the current Commission was established by HREOCA in 1986, replacing the Human Rights Commission, the timing of the restructure was such that it coincided with the expiration of the terms of the Commissioner's of the Human Right Commission and therefore the length of the Commissioners' terms were not abbreviated.
4.6 The omission of such transitional provisions also threatens the stability of and the public confidence in the Commission as it creates the perception that the Government is threatening the independence of the Commission.
In relation to the absence of transitional provisions in HRLAB No.2 relating to the currently appointed Commissioners' transition to Deputy Presidents, the Commission recommends that provisions in the same form as those concerning the continuity of the President's appointment, be inserted into HRLAB No. 2.
5. OTHER AMENDMENTS
The other amendments effected by HRLAB No. 2 impact upon the internal procedural operation of the Commission and the public's understanding and perception of the Commission. The Commission provides the following comments on the possible effect of some of the amendments on the functioning and perception of the Commission.
5.1 Restriction on President's powers to delegate under HREOCA
5.1.1 The effect of the Human Rights Legislation Amendment Bill 1997 (HRLAB) (8) is to prohibit the President from delegating the complaint handling powers in the areas of race, sex and disability discrimination to members of HREOC (including the Deputy Presidents dealing with race, sex and disability discrimination). Under HRLAB No. 2, the President could delegate his or her powers under section 11(1)(f) and (p) and section 31(b) and (k) of HREOCA but only to the Human Rights Commissioner.
5.1.2 Clause 25 of HRLAB No. 2 extends the prohibition on the President delegating complaint handling powers to Deputy Presidents to the President's complaint handling powers under HREOCA(9) . This represents a fundamental change from the scheme provided for in HRLAB that recognised that the complaint handling function under HREOCA is different from that provided for under the RDA, SDA and DDA in that HREOCA provides for reports to be made to the Attorney-General in relation to acts or practices that are inconsistent with human rights.
5.1.3 It has consistently been the Commission's view (as was expressed to the Committee's inquiry into HRLAB) that the President should be empowered to delegate complaint handling powers to members of the Commission and that it is inappropriate to limit the President's discretion to delegate to anyone, including a Deputy President, that he or she thinks fit to exercise the relevant power.
5.1.4 Furthermore, it has consistently been the view of the Commission that the function of reporting to Parliament on unconciliated complaints pursuant to s.11(f)(ii) and s.31(b)(ii) of HREOCA should be the responsibility of the Commission rather than of an individual member of the Commission.
5.2 The Structure of the Commission
5.2.1 HRLAB No. 2 retains specialist portfolio office holders within the Commission, but amalgamates four of the existing positions into two. The Commission considers that Australia has been well served by the structure adopted to date of specialist office holders. As a federal body, the wide jurisdiction of the Commission requires specialist Commissioners and such specialisation complements the generalist officeholders that exist in the state and territory structures.
5.2.2 There have been suggestions from many groups in recent years that further specialist Commissioners should be added to focus on the rights of children, older Australians and on discrimination based on sexual orientation. While urging the continuation of specialist officeholders the Commission does not make any recommendation on their number or on what their focal areas should be.
5.2.3 The Commission recognises that there is no perfect or universally recommended structure for a national human rights institution. The most appropriate structure will depend on the particular circumstances in the country at a particular time.
5.2.4 Such a consideration - of the particular circumstances at a particular time - points to the need to maintain a Commissioner who has significant experience in the community life of Aboriginal persons or Torres Strait Islanders (see below para 5.4.1(d)).
5.3 The new nomenclature for the Commission and the Deputy Presidents
5.3.1 HRLAB No. 2 repeals all references to the Human Rights and Equal Opportunity Commission and replaces them with the Human Rights and Responsibilities Commission.
5.3.2 The Commission agrees that the Commission's name should be changed but is of the view that the suggested title is confusing as it combines two different aspects of the character of the Commission and does not assist in explaining the purpose or role of the Commission. Given that the public, media and even the Government itself refers to the Commission as the "Human Rights Commission", the Commission suggests that the law should reflect the practice. The Attorney-General took this view recently in relation to the change of the official name of the Australian Law Reform Commission.
5.3.3 The titles Human Rights Commissioner, Race Discrimination Commissioner, Sex Discrimination Commissioner and Disability Discrimination Commissioner are to be repealed by HRLAB No.2 and substituted with the Deputy President responsible for human rights and disability discrimination, Deputy President responsible for racial discrimination and social justice and Deputy President responsible for sex discrimination and equal opportunity.
5.3.4 The Commission's comments in relation to these changes in nomenclature are:
(a) the new terminology for the Deputy Presidents is long, ambiguous and cumbersome for everyday use and does not assist in clearly and helpfully distinguishing between each Deputy President, especially if it is to be used in a shorthand form;
(b) the manner in which each Deputy President is described as being "responsible for" a particular form of discrimination is maladroit;
(c) the terms "social justice" and "equal opportunity" are too open-ended and capable of supporting a wide range of meanings and intentions and do not concisely reflect the mandate of the Commission or the particular Deputy President:
(i) the existing title of Aboriginal and Torres Strait Islander Social Justice Commissioner is not an accurate reflection of the jurisdiction of the Commission or the Commissioner in this area and maintaining the term "social justice" continues this inaccuracy. Social justice is a much broader term than human rights and it is not found anywhere in HREOCA other than in the title of the Commissioner.
A more accurate description of this area of concern would be "indigenous human rights".
(ii) similarly the term "equal opportunity" is broad and unhelpful in terms of defining the role of the relevant Deputy President. The Commission as a whole and each individual Deputy President will be committed to promoting equal opportunity.
A more appropriate term in the context would be "gender equality".
(d) A simple and accurate way to characterise the Deputy Presidents is Deputy President (Human Rights and Disability Discrimination), Deputy President (Sex Discrimination and Gender Equality), and if there is not to be a Deputy President specifically responsible for Indigenous Human Rights, Deputy President (Race Discrimination and Indigenous Human Rights).
5.4 The specific amendments to the HREOCA, RDA and SDA
(a) Sections 29(2)(c) and 35(2)(c) of HREOCA provide that a notice issued pursuant to HREOCA in relation to a finding that an act or practice is inconsistent with or contrary to any human right, may include a recommendation for the payment of compensation and the taking of other action that may remedy or reduce loss or damage suffered by a person.
(b) Clauses 30 and 37 of HRLAB No. 2 provide that the notice to be issued pursuant to s.29(2)(c) and s.35(2)(c) of HREOCA may include any recommendation by the Commission that action be taken to remedy or reduce loss or damages suffered by a person as a result of the act or practice other than payment of compensation or damages to the person.
(c) A finding by the Commission that is contained in the above notices can relate to a significant violation of human rights or act of discrimination or to a minor one. The only way to distinguish between the degrees of seriousness of the violation is for the recommendation to reflect it. The removal of the power to make recommendations as to compensation denies the Commission the power to make these distinctions. The effect of the amendment is that reports would only reflect the finding of a violation, leaving the respondent to face exposure and criticism for what may be a relatively minor matter.
Aboriginal and Torres Strait Islander Commissioner or Deputy President
(d) The Commission has expressed its views in the past on the need to maintain a specialist Aboriginal and Torres Strait Islander Commissioner or Deputy President. If the position is to be abolished, however, the Commission is concerned that the new Deputy President who will deal with both racial discrimination and Indigenous human rights may not be appropriately qualified to deal with the second part of the duties. This is because the repeal of the definition of the Aboriginal and Torres Strait Islander Commissioner in s.46B of HREOCA, also involves the repeal of the requirement that:
"A person is not qualified to be appointed unless the Governor General is satisfied that the person has significant experience in the community life of Aboriginal persons or Torres Strait Islanders".
(e) The Commission is strongly of the view that one of the Deputy Presidents should be someone who satisfies the above criteria.
(f) Clause 23 of HRLAB No. 2 repeals section 17 of HREOCA which provides that the Attorney-General shall establish at least one advisory committee to advise:
(i) the Commission on the performance of the Commission's functions; and
(ii) when requested by the Attorney-General, to report to the Attorney-General on action (if any) that needs to be taken by Australia in order to comply with the provisions of the Discrimination (Employment and Occupation) Convention 1958 and in respect of national policies relating to equality of opportunity and treatment in employment and occupation.
(g) The repeal of s.17 of HREOCA would result in the abolition of the National Advisory Committee on Discrimination in Employment and Occupation ("the NAC"). The NAC's members include representatives of key organisations including the Business Council of Australia, the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions. It also includes representatives of all state and territory governments and other significant community organisations. The NAC submitted to the Attorney-General in mid-1997 a draft national policy on discrimination in employment.
(h) The Commission suggests that the Committee may wish to canvass the views of organisations represented on the NAC before the NAC is abolished.
(a) Clause 113 of HRLAB No. 2 repeals the provisions contained in Part V of the RDA that establish the Community Relations Council ("the Council"). The functions of the Council (10) are to advise and make recommendations to the Attorney-General either of its own motion or upon a request from the Attorney-General on:
(i) the observance and implementation of the International Convention on the Elimination of All Forms of Racial Discrimination ("the Convention");
(ii) the promotion of educational programs with respect to the observance of the Convention;
(iii) the promotion of studies and research programs with respect to the observance and implementation of the Convention;
(iv) the publication and dissemination of material to assist in the observance and implementation of the Convention;
(v) the promotion of understanding, tolerance and friendship among racial and ethnic groups; and
(vi) any other matter related to the observance or implementation of the Convention.
(b) While successive governments have failed to fulfil the function under the RDA of establishing the Council, the Commission suggests that any move to abolish the Council should be reconsidered, given the current national sensitivities on race issues.
The Commission is concerned that the specific roles of the Sex Discrimination Commissioner or the relevant Deputy President under the Remuneration Tribunal Act 1973 and the Workplace Relations Act 1996 have been removed and given to the Commission or any member of it (see clauses 32, 33 and 34 of Schedule 3 of HRLAB No.2).
Whilst it is still possible for the relevant Deputy President to exercise this role, it is a removal of a very relevant and important nexus between those jurisdictions and the sex discrimination portfolio.
5.4.4The separation of the office of the Privacy Commissioner from the Commission
Neither the Commission nor the Privacy Commissioner has any objection to the separation of the Office of the Privacy Commissioner from the Commission pursuant to the provisions of HRLAB No. 2.
THE INDEPENDENCE OF HUMAN RIGHTS INSTITUTIONS
The single most important attribute of an institution established to protect and promote human rights is its independence. These institutions have the task of monitoring the conduct of governments and the agents of governments. If they are subject to direction and control by governments their effectiveness, integrity and impartiality are compromised and they have no credibility in the eyes of those whose rights are to be protected.
Internationally for over the 20 years the United Nations has encouraged the establishment of independent national human rights institutions. Resolutions about these bodies have always stressed the essential attribute of independence. In its most significant resolution on national institutions in 1993, the UN General Assembly
Reaffirm[ed] the importance of developing, in accordance with national legislation, effective national institutions for the promotion and protection of human rights and of ensuring their pluralism and their independence. (11)
That resolution also welcomed the development of the Principles Relating to the Status of National Institutions (the "Paris Principles") (12) which provide minimum standards for the establishment and operation of national institutions to promote and protect human rights. The essence of the Paris Principles is that a national human rights institution must have the independence and mandate essential for it to perform its functions effectively and operate in an unfettered and uncompromised manner.
Australia played the leading role in the development of the Paris Principles. For many years it has been the principal sponsor of the annual resolutions of the UN Commission on Human Rights and the UN General Assembly that re-affirm the need for national institutions to comply with the guarantees of independence contained in the Paris Principles. In 1997, for example, the UN Commission on Human Rights
Reaffirm[ed] the importance of the development of effective, independent, pluralistic national institutions for the promotion and protection of human rights in keeping with the Principles relating to the status of national institutions. (13)
In 1998 the UN Commission on Human Rights again
Reaffirm[ed] the importance of the development of effective, independent, pluralistic national institutions for the promotion and protection of human rights in conformity with the Principles relating to the status of national institutions. (14)
The Australian Government was responsible for the drafting, negotiation and presentation of these resolutions to the UN Commission and to the General Assembly. As Mr Downer, Australia's Minister for Foreign Affairs stated in New York in October 1997, in his speech to the 52nd session of the General Assembly of the United Nations
"It is with this in mind that Australia gives priority to institution building in the human rights field. One of the most significant developments in recent years has been the spread of national institutions for the promotion of human rights. Such institutions, able to work with governments and civil society, can reflect to a significant degree the different cultures and local conditions of the societies in which they are established, while at the same time remaining consistent with international human rights standards. Moreover, it is worth noting that the General Assembly has endorsed a set of minimum standards for such institutions - the so-called "Paris Principles". Despite considerable early scepticism, recent experience has been very positive and many governments and non-governmental organisations are now looking positively at independent national institutions as an important means to promote and protect human rights. The generally positive view of the work of national institutions held by most states was reflected in the adoption by consensus of Australia's resolution on this subject at this year's session of the Commission on Human Rights, with an increased number of co-sponsors". (15)
The Office of the United Nations High Commissioner for Human Rights, formerly called the Centre for Human Rights, has produced a manual for human rights institutions, National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights ("the Manual"). (16) The Manual says
An effective national institution will be one which is capable of acting independently of government, of party politics and of all other entities and situations which may be in a position to affect its work. (17)
The Manual describes four essential characteristics of independence: independence through legal and operational autonomy, independence through financial autonomy, independence through appointment and dismissal procedures and independence through composition. (18)
4. See clauses 33 and 34 (in relation to HREOCA), 106 and 109 (in relation to the RDA), 125 and 127 (in relation to the SDA) and 80 and 82 (in relation to the DDA).
5. See s.41 and 46I of HREOCA; s.34 of the RDA; s.102 of the SDA; s.119 of the DDA and s.25 of the Privacy Act 1988 (Cth).
6. See clause 132 of HRLAB No.2.
7. See clause 133 of HRLAB No. 2.
8. Clause 55 of HRLAB.
9. Sections 11(1)(f), 31(1)(b) and 31(1)(k) of HREOCA.
10. See section 28(2) of the RDA.
12. Annexed to Commission on Human Rights resolution 1992/54 of 3 March 1992 (Official Records of the Economic and Social Council, 1992, Supplement No. 2 (E/1992/22), chap. II, sect. A and to General Assembly resolution 48/134 of 20 December 1993.
17. Ibid., para 68
18. Ibid., paras 70-85Last updated 27 March 2003.