Date: 
Thursday 12 October 2017

Author

Rosalind Croucher AM, President

 

International Bar Association
Section on Public and Professional Interests

12 October 2017

Sydney

by

Emeritus Professor Rosalind Croucher AM
President, Australian Human Rights Commission

 

[Professor Croucher spoke to this paper]

 

ACKNOWLEDGMENTS

As the Head of an Australian Government agency I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and emerging community leaders of the Gadigal peoples of the Eora nation and acknowledge Indigenous guests attending today.

Thanks to Stephen Denyer for the kind invitation to address this group, which Stephen informed me, was a group of senior lawyers, well informed and committed to the IBA, but not all experts in human rights. And I was allowed 20 minutes.

MY TOPIC

Being new to the job — having started on 31 July last — I thought I would pose myself a question to answer. It is one of those questions that all agency heads should have to answer: prove to me why you should exist. This is particularly the case for agency heads in times of fiscal restraint and the generation of government ‘savings’ (ie cuts if you are essentially dependent on Government funding). And when part of your core brief is to put a spotlight on actions of Government which are not meeting human rights objectives, you have to be pretty sure of the answer to that question.

The question could be framed in several ways. Do we need a national human rights institution? What if we don’t have one? Or, as an economic rationalist might say, can’t we spend the money better elsewhere?

I will answer such questions by telling you about us, the Australian Human Rights Commission, about what we do, and what Australia would lose if there were not a body like ours.

ABOUT US

The Commission comprises myself, as President, and seven other Commissioners as ‘statutory office holders’, in the areas of:

  • Human Rights
  • Aboriginal and Torres Islander Social Justice
  • Children
  • Race Discrimination
  • Age Discrimination
  • Sex Discrimination
  • Disability Discrimination

We each hold a Commission, like judges in many respects, signed by the Governor-General of Australia. But, unlike judges, our terms are fixed for a term of years and our function is, of course, not judicial.

The Commission’s ‘mantra’ is that human rights concern ‘everyone, everywhere, everyday’. Our website explains that our statutory responsibilities include:

  • education and public awareness
  • discrimination and human rights complaints
  • human rights compliance
  • policy and legislative development.

WHAT’S THE POINT?

We can look at this question in a number of ways. First, why not get rid of us — as some suggest in a regular cycle over the years. Second, why were human rights institutions introduced at all — by us and other countries around the world. Third, what do you lose if you don’t have one. This is really ‘the point’.

Why not get rid of us?

Well, the government can do this of course. The Australian Human Rights Commission is a creature of a statute. And, as a creature of that kind, our birth —and our death — lie in statute. As Parliament gave birth to us, so Parliament can bury us. It is sobering idea.

In my previous role as President of another independent government agency within the Attorney-General’s portfolio of agencies, the Australian Law Reform Commission (ALRC), the original holder of this role, the Hon Michael Kirby AC CMG, said that ‘No one owes a law reform agency a free lunch’.[1] We can easily apply that to the Human Rights Commission. Being able to answer the question, why not get rid of the AHRC, and demonstrate what the point is, is a fair thing to ask. Both agencies involve expenditure of government money and are subject to routine scrutiny through the sometimes quite gruelling processes of parliamentary budget review processes, and we should always be prepared and willing to answer the question, ‘what’s the point?’

When I was reflecting on issues of survival in the context of the ALRC, I wrote that challenging our existence can be helpful — to a point. In periods of economic constraint, and a desire of governments to restrain public spending, it is a natural thing to look at the public service, and structures of departments and agencies and to explore things that might appear untidy, wasteful, or even unnecessary. Agencies which are very small are a natural target, even just out of a sense of ‘tidiness’. Functions that look like they could be done somewhere else prompt questions. Governments that place a premium on centralised control are naturally suspicious of functions that sit outside central control — especially those that are ‘independent’. A questioning of such matters is not necessarily a challenge to law reform agencies, or to Human Rights Commissions. Rather, it can reinvigorate a sense of who and what we are, and the essential conditions on which our work is best conducted — and of most value — to government, in an extended sense, and to law.[2]

Why were national human rights institutions introduced?

The genesis of national human rights institutions (NHRIs) as a genre is linked to the history of the UN itself. And Australia was there from the outset, being one of the original 26 signatories of the 1942 Declaration of the United Nations.[3]

The UN Commission on Human Rights, the predecessor from 1946 to 2006 of the UN Human Rights Council, thought it would be a good idea. In 1946 the Economic and Social Council (ECOSOC), under which the UN Commission on Human Rights sat, invited Member States

... to consider the desirability of establishing information groups or local human rights committees within their respective countries to collaborate with them in furthering the work of the Commission of Human Rights.[4]

This marked the first recorded discussion about NHRIs. Apart from this, and a few other diplomatic debates and occasional further resolutions, there was little significant progress regarding the development of NHRIs for the next 30 years.[5]

As international human rights treaties were developed, diplomats and human rights advocates urged the need for national monitoring mechanisms to complement the international mechanisms being established to monitor these treaties. There began a shift in focus from establishing human rights to implementing them.

In 1978, the UN Commission on Human Rights convened a seminar in Geneva and encouraged the establishment and strengthening of national institutions for the protection and promotion of human rights.[6] At this time, such institutions were understood to be any government agencies or public organisations concerned with human rights, rather than independent institutions with a specific legislative mandate to promote and protect human rights (as NHRIs are now understood).[7] It was a very loose and fluid idea of a domestic human rights body. As the UN Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights commented,

The conceptual framework for early United Nations activities in the area was flexible enough to include virtually any institution at the national level having a direct or indirect impact on the promotion and protection of human rights.[8]

Then, in 1986, the UN General Assembly resolved to ‘encourage all Member States to take appropriate steps for the establishment or, where they already exist, the strengthening of national institutions for the protection and promotion of human rights’.[9] It also emphasised ‘the importance of developing, in accordance with national legislation, effective national institutions for the protection and promotion of human rights, and of maintaining their independence and integrity’.[10]

Why Australia established one[11]

The first Commission was established in 1981 by a conservative Government (under Malcolm Fraser as Prime Minister). It had part-time commissioners. The Act establishing this first Commission included a sunset clause under which the first Commission ceased operation in 1986. The passage of the Australian Human Rights Commission Act 1986 (Cth) marked the establishment of the present Commission, symbolically on 10 December 1986 — International Human Rights Day.

In his Second Reading Speech for the Human Rights Commission Bill 1981, the then Attorney General, the Hon Senator Durack, said that the Commission ‘will promote the observance of human rights throughout Australia within the limits of Commonwealth power’.

Australia had ratified the ICCPR in August 1980 and this provided a crucial catalyst to the establishment of the Commission. Senator Durack said that this added to ‘the need for effective human rights machinery in Australia’ and would ‘help Australia to discharge the obligations it has assumed under the covenant’.[12]

Senator Durack also observed that the purpose of the Human Rights Commission was ‘progressively to develop a better and more comprehensive recognition and observance of the rights of every individual in our community, regardless of financial standing and whatever his or her race, age, sex, religion or status’.

The Australian Human Rights Commission has a number of broad roles. One is a complaints handling role, both for complaints concerning human rights matters involving the covenants referred to in the Act — principally the ICCPR — and complaints of discrimination on specific grounds under the set of anti-discrimination Acts. There are also reporting functions and education functions; and of course there is growing international engagement.

The best NHRIs

Today, the term ‘NHRI’ refers to a body that complies with the ‘Paris Principles’. These came out of a conference in Paris in 1991, under the auspices of the UN Commission on Human Rights, which was held to assist countries to set up appropriate human rights agencies by developing guiding principles. These principles were settled by the Commission on Human Rights in 1992 and adopted by the UN General Assembly in 1993. We had an Australian at the front line, as Brian Burdekin, the Australian Human Rights Commissioner (1986–1994), was appointed a special assistant to the High Commissioner for Human Rights, Dr Mary Robinson, with responsibility for implementation of the Paris Principles.

NHRIs are now accredited and ‘rated’ in line with compliance with these principles, which provide that:

  • a national institution should be given as broad a mandate based as possible based on universal human rights standards
  • that mandate should be clearly set out in a constitutional or legislative text, specifying the institution’s composition and its sphere of competence, and the periods for which members are appointed
  • the composition of the institution and the process for selecting its members should ensure the pluralist representation of the various sectors of society and the possibility for the commission to collaborate with all sectors of the community engaged in human rights issues, in particular non-governmental organisations, and
  • a national institution should have adequate funding to support its own staffing and infrastructure ‘in order to be independent of the Government and not be subject to financial control which might affect its independence’.[13]

There are three levels of accreditation, undertaken by the Global Alliance of National Human Rights Institutions (GANRHI): ‘A’, ‘B’ and ‘C’. he AHRC has maintained its ‘A’ status since its first assessment in 1999 — despite political controversy and declines in funding to the Commission over time. Preparations for accreditation are rigorous, as demonstrated by the Statement of Compliance with the Paris Principles submitted by the Commission for its reaccreditation review in 2016 — something that happens every four to five years.[14] It runs to 39 pages of very dense text.

What the government — and Australia — gets out of it

The sections below discuss a few benefits derived from having a strong NHRI.

Systemic strengthening

The educational side of the AHRC’s work is perhaps one of its most enduring contributions to Australian society, through the developing of human rights education programs, guidelines and resources for schools, workplaces and the community. Such contributions play a role in building respect which I have described as ‘the essence of a civil society’ and ‘the active voice of dignity which is the essential right linking all of the international conventions to which Australia has committed’.[15] From the work on preventing cyber-bullying, a song for pre-schoolers with the repeated line ‘let’s join hands and show we care’, to the video about the importance of the Magna Carta — downloaded around 50,000 times in 2016–17 alone — the Commission’s outreach in contributing to building respectful citizens and bystander support is one of the most important and perhaps quietest of achievements of the Commission. Indeed, some of our most popular education resources are our school education modules, linked to the learning areas under the National Curriculum and also ‘Face the Facts’, providing factual information about controversial issues to inform debate.

Cost saving

Resolving complaints of discrimination or breaches of human rights under federal laws is a big part of the work of the AHRC. Complaints usually start with just a phone call or email — some form of contact — by, on average, 15,000 people a year who consider they’ve been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue our formal complaints process, one that is based on conciliation. Only a tiny number of these ever end up in court; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

What impact does this have on broader access to justice questions? Analysis of the cost impact of the services provided in complaint handling by the Commission, rather than through a court process, suggests significant savings. Private costs in having matters conducted through the Commission are minimised through typically limited involvement of lawyers and there are not costs in making a complaint. There are public costs of providing the service, but compared to the public cost of court time and private costs of legal fees, the difference is considerable. At one time it was estimated as being a saving of up to $200 million per annum.

Reputation

Having an ‘A’ status NHRI brings reputational benefits to the government. Having ‘A’ status has its perqs:

‘A’ status institutions ... can participate fully in the international and regional work and meetings of national institutions, as voting members, and they can hold office in the Bureau of [the Global Alliance of National Human Rights Institutions (GANHRI)] or any sub-committee the Bureau establishes. They are also able to participate in sessions of the Human Rights Council and take the floor under any agenda item, submit documentation and take up separate seating.[16]

Governments get considerable leverage from having an ‘A’ status institution, in the international networks of NHRIs.[17] Byrnes, Durbach and Renshaw commented:

If a state wishes to reap the political benefits of establishing an NHRI, then the maximum political benefit is likely to be gained if the institution is recognised by its international peers as legitimate.[18]

Further, ‘if a government’s undermining of its NHRI is likely to lead to a review of the NHRI’s international status, or to its suspension or expulsion from the network, the resulting loss of legitimacy for the NHRI and the bad press this generates for the government may in some circumstances deter the government from taking such steps’.[19]

Governments can use the status of their institution and its work to be in the UN ‘good books’. Byrnes, Durbach and Renshaw have noted that:

The importance — or at least the utility — for governments of having established a national human rights commission can be seen in the many pronouncements of states in international fora, especially when presenting their performance on human rights or defending against criticism of their record. In the recently introduced Universal Periodic Review before the Human Rights Council involving peer review of states by other states, states under review have regularly referred to the existence and work of their commissions to evidence their commitment to human rights.[20]

In the 2015 second cycle universal periodic review (UPR), Australia noted the work of the AHRC numerous times in its National Report.[21]

The Report of the Working Group on the second cycle of the UPR noted that numerous countries positively referred to the Commission or individual Commissioners (Georgia, Greece, Myanmar, Trinidad and Tobago, Albania).[22] Australia also thanked the Commission for its involvement in the review process, and reaffirmed its commitment to engage in balanced human rights debate.[23]

UN treaty bodies also often refer to, and commend, the work of the Commission in their respective concluding observations following periodic review.[24] UN Special Procedures also often refer to and commend the work of the Commission.[25]

Australia has made a particular commitment to NHRIs over time and is one of the leading supporters internationally of them, as is evident in the documentation supporting Australia’s bid for candidacy of the UN Human Rights Council.

Human Rights Council bid

Australia has made a bid to seek a seat on the UN Human Rights Council. Importantly, Australia’s campaign is built on five pillars which ‘represent areas where Australia can advance human rights in practical, sensible ways that will have far-reaching systemic effects over time’.[26] The five pillars are:

  1. gender equality
  2. good governance
  3. freedom of expression
  4. the rights of indigenous peoples
  5. strong national human rights institutions and capacity building

In its Note verbale to the UN General Assembly, Australia said:

Independent national human rights institutions and a strong and robust civil society play a crucial role in preserving and advancing human rights. Australia is a strong advocate for strengthening the capacity of national human rights institutions to promote and protect human rights.[27]

Relevantly, one of Australia’s pledges in Pillar 5 is to:

Maintain the A-status accreditation of the Australian Human Rights Commission. The Commission is an independent statutory body, the functions of which include providing education and awareness-raising on human rights, investigating and reconciling complaints of unlawful discrimination, conducting national inquiries and reporting on issues of human rights concern.[28]

So, this is not a good time to suggest getting rid of the AHRC.

Engagement with China

The Commission has been the vehicle through which Australia has engaged with countries in our region with respect to human rights through ‘technical assistance’ — in capacity building. Of particular significance, the Commission has noted its engagement with China:

The engagement with China is the most substantial illustration of this. Australia, through the [Commission], is the only nation that has been able to sustain a government-to-government program that deals specifically with human rights in China. While other governments have programs with China in broader governance related areas, Australia’s is the only bilateral program with an explicit human rights focus. The success and longevity of the program reflects its non-confrontational management style, the emphasis on building of relationships and the program’s alignment with the priorities of the partner government.[29]

WHAT’S THE POINT?

Australia gets a lot out of having a national human rights institution, both domestically and internationally. (A question for another day should be ‘what would we not have, were it not for the Australian Human Rights Commission?’ Examples there would include that all Australian governments committed to a rights-based approach to Indigenous health equality as the basis for government action (Close the Gap) and the high rates of accessibility in captioning, public transport, public buildings and education, that have been driven by the Commission’s standards development work under the Disability Discrimination Act).

Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights. Even if it means we should expect criticism — for calling out Government against the commitments made to the international community in signing up to the international treaties that set the benchmark for human rights. Even if it means that Government see us more of the Devil’s Blowtorch than the Devil’s Advocate.

Sovereign domestic parliaments may not want to be ‘ruled by Geneva’ as one of the phrases goes, and ruled instead by Washington, London, Ottawa or Canberra, but signing up to the international community through its conventions, declarations, covenants and treaties does affect what sovereign parliaments do. It’s not so much about ‘rule’ by Geneva, but reflecting sincerely upon those deep commitments in one’s domestic fields of operations. National Human Rights Institutions need to understand their role, both internationally and domestically, and play their part sincerely, fully backed up by research and defensible methodology, and to be measured and principled — as well as pragmatic — in their recommendations. Resilience is required in no small measure.

There will be critics. Criticism is a healthy part of robust democracies; and agencies that draw their existence from statute and are funded by Government should be open and willing to listen to criticism. And ready, willing and above all, able to show that there is a point to our existence.


[1] Michael Kirby, ‘Law Reform — Past, Present and Future’, Address to the Alberta Law Reform Institute, Monday 2 June 2008, 11.

[2] Rosalind Croucher, ‘Law Reform Agencies and Government—Independence, survival and effective law reform?, Commonwealth association of Law Reform Agencies Conference, Melbourne, 15 March 2017: https://www.alrc.gov.au/news-media/speech-presentation-article/law-reform-agencies-and-government%E2%80%94independence-survival-and.

[3]http://www.un.org/en/sections/history-united-nations-charter/1942-declaration-united-nations/index.html. The original signatories: the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, Union of South Africa, Yugoslavia.

[4] UN Economic and Social Council, Resolution Adopted 21 June 1946, E/56/Rev.2 (1 July 1946), [5].
[5] Brian Burdekin, National Human Rights Institutions in the Asia-Pacific Region (Brill, 2006), 11.
[6]National institutions for the protection and promotion of human rights (A/Res/33/46 of 14 December 1978).
[7] Brian Burdekin, National Human Rights Institutions in the Asia-Pacific Region (Brill, 2006), 11.

[8]National Human Rights Institutions: A Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights, United Nationals, 1995, [36].

[9]National institutions for the protection and promotion of human rights (A/RES/41/129, 4 December 1986), [3].
[10] Ibid, [2].

[11] For a history of the establishment of the 1981 and 1986 Commissions, see Peter Bailey, Human Rights: Australia in an International Context (Butterworths, 1990) 117–147; and Peter Bailey, The Human Rights Enterprise in Australia (Lexis Nexis, 2009) 327–395.

[12] Note Senator the Hon Lionel Murphy as AG of the Labor government had moved a Human Rights Bill in 1973, including the establishment of a Human Rights Commissioner and a Human Rights Council, with a statutory Bill of Rights. There were also Bills of the conservative government in 1977 and 1979.

[13] As summarised in Andrew Byrnes, Andrea Durbach and Catherine Renshaw, ‘Joining the club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the advancement of human rights protection in the region’ (2008) 14(1) Australian Journal of Human Rights 63, 66. ‘Principles relating to the Status of National Institutions (The Paris Principles)’, adopted by General Assembly resolution 48/134 of 20 December 1993: http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInsti...

[14] The SCA has consolidated its observations from this accreditation to develop ‘General Observations’ regarding the content and scope of the Paris Principles: Global Alliance of National Human Rights Institutions, ‘General Observations of the Sub-Committee on Accreditation’ (March 2017): http://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/General%20Observations%201/GeneralObservations_adopted%2006.03.2017_EN.pdf
[15]The Australian, Friday 6 October, 2017.

[16] Byrnes, Durbach and Renshaw, 65. Accreditation takes place under the rules of procedure of the GANHRI’s Sub-Committee on Accreditation (SCA). The SCA comprises one ‘A’ status institution from each of the four GANHRI regional groupings: Africa (Commission nationale des droits de l’homme of Mauritania), Americas (Canadian Human Rights Commission), Asia and the Pacific (Independent Commission for Human Rights of the State of Palestine), Europe (Commission nationale consultative des droits de l’homme of France). Its members are appointed by regional groupings for a renewable term of three years.

[17] Including the Asia Pacific Forum (APF), GANHRI, and the Commonwealth Forum of National Human Rights Institutions (CFNHRI).

[18] Byrnes, Durbach and Renshaw, 69.
[19] Ibid.
[20] Byrnes, Durbach and Renshaw, 69.

[21]https://www.ag.gov.au/RightsAndProtections/HumanRights/United-Nations-Human-Rights-Reporting/Documents/UPR-National-Report-of-Australia-2015.pdf , [5], [21]-[23].

[22] UN General Assembly, Human Rights Council, Report of the Working Group on the Universal Periodic Review – Australia (Thirty-first session, Agenda item 6, Universal periodic review) (13 January 2017) A/HRC/31/14: https://www.ag.gov.au/RightsAndProtections/HumanRights/United-Nations-Human-Rights-Reporting/Documents/UPR-Report-of-the-Working-Group.pdf.

[23] Ibid, [6].

[24] See, eg, UN Committee on Economic, Social and Cultural Right, ‘Concluding observations on the fifth periodic report of Australia’ (11 July 2017) E/C.12/AUS/CO/5 at [9]-[10].

[25] See, eg, Office of the High Commissioner of Human Rights, End of mission statement by Dubravka Šimonović, United Nations Special Rapporteur on Violence against women, its causes and consequences, visit to Australia (27 February 2017): http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21243&LangID=E. See also Office of the High Commissioner of Human Rights, ‘End of Mission Statement by the United Nations Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz on her visit to Australia’ (2017): http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21473&LangID=E.

[26] Department of Foreign Affairs and Trade, “Australia’s candidacy for the United Nations Human Rights Council 2018-2020” (2017). Available at http://dfat.gov.au/international-relations/international-organisations/pages/australias-candidacy-for-the-unhrc-2018-2020.aspx (accessed on 31 August 2017).

[27] UN General Assembly, Note verbale dated 14 July 2017 from the Permanent Mission of Australia to the United Nations addressed to the President of the General Assembly (24 July 2017), UN Doc A/72/212 at [19].

[28] UN General Assembly, Note verbale dated 14 July 2017 from the Permanent Mission of Australia to the United Nations addressed to the President of the General Assembly (24 July 2017), UN Doc A/72/212, [19].

[29] Joint Standing Committee on Foreign Affairs, Defence and Trade, Human rights in the Asia-Pacific: Challenges and opportunities (2010), [4.129]. Available at http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_representatives_Committees?url=jfadt/asia_pacific_hr/report/index.htm

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Sydney NSW
Australia