Presentation at the Governor’s Leadership Foundation Forum

81 Flinders Street, Adelaide

John von Doussa QC

President, Human Rights and Equal Opportunity Commission (HREOC)

I would like to acknowledge the Kaurna people, the original custodians of the land on which we meet tonight.

What does HREOC do?

HREOC is a statutory body independent of government. While our main function is to promote an understanding and acceptance of human rights in Australia, we are also charged with the responsibilities of investigating, and attempting to conciliate complaints of unlawful discrimination under the federal Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.1  HREOC also has specific responsibilities to report annually to Parliament on the enjoyment of human rights of Indigenous Australians.

Underpinning HREOC’s work is the belief that human rights are the bedrock of democracy and decency and, in the interests of equality and justice, all laws and policies should comply with basic human rights principles.

The concept of human rights is based on a common recognition of the importance of fair treatment for all and the belief that people should be able to live free of violence, discrimination, vilification and hatred.

Protecting human rights

Australia has a strong human rights record. But the fact we are proud of our foundations should not mean we avert our eyes from the cracks in the pavement.

Today, I want to reflect on the adequacy of human rights protection in Australia by talking about two human rights issues currently concerning HREOC:

  • the problems being uncovered by HREOC’s inquiry into discrimination against same-sex couples; and
  • balancing national security and human rights principles.  

While the issues of discrimination against same-sex couples and counter-terrorism laws appear to share little common ground both issues raise an important question: Do we pay enough attention to human rights in the law and policy making process?

Same-Sex: Same Entitlements Inquiry

One powerful educational tool that HREOC uses draw public attention to human rights issues is to hold a public inquiry.

This year the Commission launched a National Inquiry into the discrimination faced by same sex couples in relation to financial and work-related entitlements.

The Inquiry is conducting an audit of State, Territory and Commonwealth laws that exclude gay and lesbian couples from financial and work-related benefits available to heterosexual couples.

So far we have received over 360 submissions to this inquiry. Still more people have attended the public forums and hearings HREOC has held across Australia.

The right to non-discrimination and the right to equality before the law are fundamental principles of international human rights law.  

Yet many Australian laws clearly deny certain rights to gay and lesbian couples and their children. For example, laws relating to social security, superannuation, tax, Medicare, the Pharmaceutical Benefits Scheme, workplace entitlements, aged care, immigration and family law treat same-sex couples differently to straight couples.

The submissions HREOC have received illustrate how laws treat gay and lesbian couples as second class citizens, not deserving of the same rights as heterosexual couples. As one person put it:

The inequalities embedded in current legislation are obvious and are inexcusable.  "Understanding, tolerance and inclusion" are said to be values of the Australian community. Current legislation tells another story.2

Another submission highlights that discriminatory laws give licence to discriminatory attitudes in the community:

Current legislation gives a clear message from our parliamentarians that discrimination against homosexuals and same sex couples is acceptable. The discrimination then extends beyond our laws and is adopted in peoples’ attitudes and misconceptions.3

In 2007 HREOC will make recommendations to Parliament for amendments to the laws to eliminate the discrimination that face same-sex couples.

But one of the important questions that the same sex inquiry raises is how did laws which have a clearly discriminatory effect on the day to day lives of many Australians get passed in the first place?  

The fact that a raft of discriminatory legislation has traveled through parliamentary processes without any discussion of how it might discriminate against same-sex couples tells us that we need to find a better way to test the human rights compatibility of proposed legislation.

Counter-terrorism legislation

Legislation regulating the financial entitlements of same sex couples is not the only area that could benefit from a human rights compliance check.

Striking the right balance between protecting national security and preserving human rights is one of the great challenges facing Australia in the post September 11 world.

Since September 11 there has been a raft of counter-terrorism laws have changed the legal landscape of Australia. Most recently, in the aftermath of the home-grown terrorist attacks on London, the Government introduced the Anti-Terrorism Bill (No.2)) 2005. The Bill included provisions for preventative detention orders, control orders, and special police powers to stop, search and question people.

HREOC’s main concern about the Bill was the absence of adequate remedies for review of the new extraordinary powers the Bill was to give to the Executive. In HREOC’s submissions to Senate Committee Inquiries into the Bill we emphasised the need for review mechanisms to check that the exercise of executive decision making powers are proportionate and necessary in the particular circumstances.

As a result of the public discussion and media attention, the government announced amendments allowing greater judicial involvement and review of the most invasive measures.

However, too often counter-terrorism laws powers are not subject to scrutiny where an exercise of power should be justified.

Many executive decision-making powers under counter-terrorism laws – including action taken under the ASIO Act and the decision to issue a preventative detention order -  are excluded from review under the Administrative Decisions (Judicial Review) Act 1977.

While excluded decisions can still be the subject of judicial review at common law under section 75(v) of the Constitution and the Judiciary Act 1903 (Cth), this is the poor cousin of ADJR review. A crucial difference is that the ADJR enables the subject of a decision to obtain a written statement of the reasons for the decision. 

More importantly, to provide a full audit of executive power, legislation needs to go beyond judicial review to merits review so that the person who is the subject of the exercise of power can challenge the factual basis upon which the decision was made.

While, the Attorney-General’s power to proscribe a terrorist organisation4  is subject to ADJR review, the Attorney’s decision is not subject to merits review. This is a troubling because despite the fact a long list of derivative offences flow from a person’s association with a ‘terrorist organisation’, there is no way for defendants in criminal proceedings to test he veracity of facts on which a proscription order was made.

Making Human Rights Matter

In the absence of an Australian Bill of Rights, it is worth remembering that ‘the beneficial effect of human rights on public decision making does not [solely] depend on judges’.5

Striking the right balance between national security and human rights should be a crucial issue in the pre-legislative process of formulating policy and drafting legislation.

While no one can question the value of parliamentary committees scrutinising new Bills, this process is subject to fundamental limitations. The parliamentary committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the Bill’s implementation.  There is no explicit requirement for the committees to investigate the human rights compatibility of the proposed bill.  Perhaps most importantly, the government is under no obligation to implement – or even respond to – committees’ recommendations.

While HREOC has concerns that some aspects of Australia’s counter-terrorism laws may disproportionately infringe human rights and freedoms, it is noteworthy that often the laws that have been enacted are far less alarming than the original bills.

I would suggest that if cabinet submissions about new counter-terrorism powers had been accompanied by a human rights impact statement and the Attorney had been required to present a human rights compatibility statement along with the counter-terrorism bills in 2002, 2003 and 2005, a lot of the acrimonious debate that brought about better checks and balances in the final legislation would not have been necessary.

Under the Charter of Rights and Responsibilities Act 2006 (Vic) the Victorian Government must pay attention to the human rights impact of new laws and policies:

  • submissions to Cabinet about new laws or policies must be accompanied by a Human Rights Impact Statement;
  • new Bills must be accompanied by a human rights compatibility statement;
  • a parliamentary scrutiny committee must independently assess the human rights compatibility of new Bills; and
  • parliament must justify its actions if it decides to pass laws which are inconsistent with human rights principles.

These provisions represent an important step forward for human rights because they integrate human rights principles into the daily decision making of the legislature and the executive.

Protecting Human Rights – everyone’s responsibility

So far I have focused on the role of government in ensuring laws and policies comply with Australia’s human rights obligations.  Yet human rights are not just the responsibility of law makers.

In our daily working lives we all have a responsibility to help foster a discrimination free environment.

We need to be conscious of the ways in which workplace culture – for example the machismo culture of 80 hour working weeks or penalty clauses for employees who take sick leave – can indirectly discriminate against people with family or caring responsibilities.

In what is sometimes referred to as a ‘post-feminist age’, the symptoms of gender discrimination are still obvious. The average weekly earnings for full-time women workers is only 84.4% of their male equivalents.

HREOC encourages employers to create a discrimination and harassment free environment through our 'Good practice, good business guide', while employees can obtain information about their rights under discrimination law on our 'Work out your rights' website.  

One of the encouraging developments we’ve seen is employers taking on leadership roles in promoting work-life balance amongst their employees and narrowing the gender pay gap. Earlier this year, for example, the National Australia Bank became the first employer to commit to a pay equity audit.

As employers, as employees, as board members, as students, as sportspeople, we can all take responsibility for respecting human rights.

As citizens, as humans, I hope we can recognise that human rights are for everybody, everyday. I hope we can look for opportunities to promote equality, to speak out against intolerance.  And I hope that when such opportunities arise – and they will - we speak clearly, without hesitation.

[1] HREOC also has similar functions that are perhaps less well understood arising under the provisions in Part II of the Human Rights and Equal Opportunity Act 1986 (the HREOC Act) which deal with equal opportunity in employment. These provisions seek to implement in part Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958 (ILO Convention 111), which is a Schedule to the HREOC Act. Under these provisions, HREOC can receive complaints of discrimination in the workplace on many grounds, including religion, political opinion, medical record, criminal record, marital status, sexual preference, or trade union activity.

[2] James Duncan, Submission 288.

[3] Jennifer Calahan, Submission 239.

[4] This power can be exercised if the Attorney is satisfied on reasonable grounds that the organization directly or indirectly plans, assists, fosters or advocates the commission of a ‘terrorist act’. 

[5] Professor David Feldman, ‘The roles of Parliament in Protecting Human Rights: A view from the UK”, address given at the Human Rights and Legislatures Conference, Melbourne University, 20-22 July 2006.