Friday 23 November 2018



NSW Claims Discussion Group Inc

23 November 2018

[Professor Croucher spoke to this paper]

Thank you, Dr Tim Channon, for inviting me to present this lunchtime address.

I, too, pay my respects to elders past, present and emerging of the Gadigal people of the Eora Nation, the traditional custodians of the land where we meet today.

I was asked to talk about my personal story and a subject of my choosing.  So I thought I would tell you what I have learned about the Australian Human Rights Commission, under the theme of ‘The somewhat invisible world and extraordinary contributions of the Australian Human Rights Commission’.

My appointment to the role of President of the Australian Human Rights Commission commenced at the end of July last year. I had lots of questions when I began and I have learnt a great deal since.

I will begin with an Eleanor Roosevelt quote, given that this is the 70th anniversary of the Universal Declaration of Human Rights and that she chaired the United Nations committee that made it happen. In her autobiography written in her later years, On My Own, she said: ‘life is made up of a series of adjustments’.

How I got to the AHRC

I wanted to be a barrister, like my father — he was later a judge, who retired at the age of 72 after 27 years on the bench.  I did Arts/Law with honours in history and along the way I played lots of music—as an oboist and cor anglais player with the ABC National Training Orchestra, Australian Youth Orchestra and then as part of the Opera and Ballet Orchestra at the Opera House.  But Tchaikovky did that in. While the opera season is run in repertory, with several operas on at once, the ballet season is unrelenting. Sleeping Beauty was a killer. Over three hours and two intervals long. Deadly dull. Poor Pyotr Ilyich Tchaikovsky must have been desperate for a few rubles. Perhaps he was contemplating his own change of career directions, albeit some years earlier—he had been sent to the Imperial School of Jurisprudence in St Petersburg to train for a career as a civil servant.

I found much more satisfying the 7 years with the early music group, the Renaissance Players, based at the University of Sydney, instead, with singing and playing and much theatricality. 
In my last years at law school I was a paralegal with a middle-sized firm, then called Smithers, Warrren and Tobias and had started upon the track. Then when I was at the College of Law, doing my Practical Legal Training course (free, then, I should add), I found out that I was pregnant. I was six months pregnant when I was admitted. Although I had worked two years part-time with a firm of solicitors, obtained my practising certificate, and could have continued there, the demands of motherhood came as a real shock. They were incompatible for me at that time. So I held a practising certificate for only one year.

When my daughter was born in March 1981 I was utterly clueless. When she was nearly a year old I applied for a position in teaching at Macquarie University. I got it. Curiously, what secured me the teaching position, at the age of 27, was none of the things that a career path would have mapped out. Not a higher degree — I hadn’t even thought about that one yet, the PhD would come later, although I did have an Honours degree in History which evidenced research ability; not publications — I didn’t have any of those — all essential these days even to start in the academic world. But I did have teaching experience — in music. (I had been a professional musician around the edges of my law studies). I had taught a residential summer school in early music, with a group aged from 17 to 70.  It was a great background for teaching distance students, who came in for weekends at a time on campus. It was quite an enlightened approach to appointments—looking at skills, rather than knowledge.

Then the teaching was like a duck to water.  I loved it. 

I accidentally got on another track and it opened up a whole new career path until 2007. 25 years, including the last seven years of it as Dean of Macquarie Law School. I did a circuit of Sydney law schools: two years at Macquarie, seven at UNSW, nine at Sydney and then back to Macquarie for seven.

Then in 2007 I went to the ALRC as Commissioner, and at the end of 2009 I was appointed as President. On 5 May 2017 I ‘expressed interest’ in being President of the Australian Human Rights Commission—and I am now up to my 6th Attorney-General.

Career paths are actually formed through a wonderful conjunction of twists and turns—opportunities—filled also with lots of life’s experiences. It is a story of doors: ones that close; and ones that open. They are not linear—and they only make sense backwards.

Life, as Eleanor Roosevelt said, is made up of ‘a series of adjustments’.

The Australian Human Rights Commission.
What I’ve learned in my role ….

I began my appointment as President on 30 July last year. I set myself some important tasks, most particularly to understand what it was that had attracted public attention, and indeed public ire, about the Commission. But I also needed to be inside the place and see how much good is being done that the outside world hardly ever sees, or if they do, misunderstands—and sometimes very badly.

First, I wanted to learn thoroughly about the Commission—its history, its current role and where it sits both nationally and internationally.

The Commission today comprises myself, as President, and seven other Commissioners as ‘statutory office holders’, appointed as Australia signed up to new international conventions and commitments. Our current complement includes Commissioners in the areas of:
• Human Rights
• Aboriginal and Torres Islander Social Justice
• Children
• Race Discrimination
• Age Discrimination
• Sex Discrimination
• Disability Discrimination

Lesson one: the ‘foundation stone’ of the Commission was the Racial Discrimination Act 1975 (Cth) and the creation of the position of Commissioner for Community Relations, the position that became the Race Discrimination Commissioner in 1986. The Hon AJ Grassby was appointed the first Commissioner and his principal tasks were to conciliate disputes involving racial discrimination, and to promote the purposes of the Act within Australia.  So rather than being some kind of ‘add on’ to the Human Rights Commission, this role, and the commitments internationally under the treaty that sat behind it, are the basis upon which our institutional infrastructure for the protection of human rights began in Australia.

Lesson two: the first Human Rights Commission was established in 1981, by a conservative Government, led by the Hon Malcolm Fraser as Prime Minister. The prior August Australia had finally ratified the International Covenant on Civil and Political Rights (ICCPR) (which had entered into force fifteen years before, in 1976).
In a ceremony to mark the commencement of the legislation, held on 10 December 1981—International Human Rights Day, the anniversary of the adoption of the Universal Declaration of Human Rights by the General Assembly of the United Nations in 1948—the then Prime Minister, the Hon Malcolm Fraser MP, said the establishment of the Commission ‘represents a unique approach to issues of human rights, and it has the capacity to make an innovative contribution to the advancement of rights in Australia’.

The Act establishing this first Commission included a sunset clause under which it ceased operation after five years, in December 1986.  The legislation that is the parent of the current Commission, the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), commenced symbolically on International Human Rights Day, 10 December 1986. This second iteration of the Commission, now as a permanent body, was as the ‘Human Rights and Equal Opportunity Commission’, or ‘HREOC’ as it was known.  

Lesson three: not all of the architectural design of this Commission was implemented—namely the proposed accompanying Australian Bill of Rights Act.  The proposal was that the functions in relation to the ICCPR would now be exercised under the Australian Bill of Rights Act. The Australian Bill of Rights Bill 1985 (Cth) replicated the existing human rights functions of the Commission, but by reference to the human rights set out in the Bill of Rights, to give effect to the assumptions under the ICCPR. In his second reading speech, the then Attorney-General, the Hon Lionel Bowen MP, said that the Government had ‘never been satisfied that administrative mechanisms, particularly of the limited kind which eventually emerged under the 1981 Act, were the only means by which Australia could or should carry out such a clear undertaking’.

The Bill was passed in the House of Representatives, but did not survive the Senate. This did not mean that the human rights functions fell away, but rather the new Commission, HREOC, would continue to exercise the functions relevant to the ICCPR for Australia, as the previous Commission had—even without a formal enactment of the covenant as a ‘Bill of Rights Act’.
Each Commission has had distinct roles in common: the promotion and protection of human rights. The promotion aspect is performed principally through education, advocacy and advice—to the Government, to Parliament, and to the broader community. Protection of human rights is focused largely on the world of individuals, expressed through the complaint handling functions of the Commissions.

Complaint handling

The Commission has a number of broad roles. The one perhaps most familiar to you is the complaints handling role, for complaints of unlawful discrimination on specific grounds under the set of anti-discrimination Acts: the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth). This is a key role to the mandate of the Commission, because it is the ability of an individual to bring a claim under the legislation that is the principal way to enforce those laws as the domestic enactment of international treaty commitments. The anti-discrimination laws also get a fair amount of public attention from time to time.

There were more lessons I learned here too. What surprises many is that the discrimination commissioners have no role in hearing complaints. They initially did have this role. From 1975 and for almost 20 years Commissioners heard complaints, including, from 1992, a process of internal review by the Commission and the ability to register decisions with the Federal Court to have effect as if they were orders of the Court. But, in 1995, the High Court held that the enforcement mechanism through this registration process was unconstitutional, because it purported to vest judicial power in the Commission, contrary to Chapter III of the Constitution. 

Legislative amendments to the Act were eventually achieved, effective from 13 April 2000. A uniform scheme for complaint handling was introduced, to replace the provisions in the separate Discrimination Acts, including a new standalone cause of action for unlawful discrimination. An affected person could bring an unlawful discrimination case once the relevant complaint was ‘terminated’ at the Commission.  This provision remains the contemporary basis for the bringing of an action for unlawful discrimination in the Federal Courts.

Complaint handling functions were no longer vested in the Discrimination Commissioners but in the President. The process of internal review was also removed. So all the complaint handling is now managed through a direct delegation from me, as President. The Discrimination Commissioners and the Aboriginal and Torres Strait Islander Social Justice Commissioner were given an amicus curiae function in certain proceedings before the Federal Court, a role they can play as they have no direct involvement in the complaints processes themselves.

But what is part of the ‘somewhat invisible world’—at least to the general public—is that we have two other distinct complaints pathways: one that has been a feature of the Commission’s jurisdiction since 1981 and is directly linked to international instruments like the ICCPR for breaches of human rights by the Commonwealth; the other, since 1986, for discrimination in employment contrary to the provisions of the Discrimination (Employment and Occupation) Convention 1958 (ILO 111). ILO discrimination grounds include things like religion and political opinion and other grounds that have been taken up in specific anti-discrimination legislation: race, sex, age and disability. Since 1989 this aspect of the Commission’s jurisdiction has been expressly stated to include, among other grounds, trade union membership and criminal record.

So, in short, there are three pathways: anti-discrimination laws, with a possibility of court resolution; and human rights and ILO discrimination with no pathway beyond recommendations by the President in the form of a report to the Attorney-General.

The centrepiece of the Commission’s complaints is conciliation, and it has been thus since 1981. The processes are confidential—indeed we have strict confidentiality (secrecy) provisions in our Act. Matters only become public if the individuals involved in the processes decide not to keep them confidential, or in the case of complaints under the Discrimination Acts, they go to Court—but this only happens in around 2-3% of complaints in any given year; or for human rights and ILO complaints through the tabling of reports in Parliament.

Resolving complaints is a big part of the work of the AHRC. Each year, on average, the Commission handles 2,000 complaints, and nearly all of those are resolved through a very strong conciliation program, with a high success rate. Of those that are conciliated, about 75% are conciliated successfully. The participants in the conciliation process are evaluated, and the survey feedback from that is very, very strong—not only from those who are complainants but also from those who are respondents.

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.

All of this goes on, unnoticed and unobserved, year in, year out.

Writing in March 1986, at a time when the 1981 Commission had only a few more months before the expiration of its ‘sunset clause’, Peter Bailey played ‘Devil’s Advocate’ in asking a number of challenging questions with respect to the Commission and its role. One such question was ‘Does the Commission really protect human rights?’, given that the Commission had no enforcement authority and had ‘not infrequently been disparaged as a “tame cat” or a “toothless tiger”’.  Bailey answered this in much the same way that I have been speaking. ‘Nevertheless’, he said, ‘some 10,000 people have sought help from the Commission and its predecessor, the Commissioner for Community Relations’:

In almost all cases, the complainants would have nowhere else to go, because legal process would be too formal or expensive and would not necessarily have yielded a satisfactory outcome. For each complainant there will be at least one respondent and there is always an associated group of people involved. So through its complaint-handling procedure the Commission has directly affected upwards of 50,000 people.

These comments were made some 32 years ago. Just do the maths for the intervening years to get a sense of this extraordinary contribution.

Educational outreach

The educational side of the Commission’s work is perhaps one of its most enduring contributions to Australian society. I was gobsmacked by how large the educational outreach program is, developing human rights education programs, guidelines and resources for schools, workplaces and the community.

I will give an example. Most recently the Commission released resources for years 7–10, including a number of animated videos, under the heading, ‘The Story of Our Rights and Freedoms’.  They articulate with the school curriculum in the subjects History, Civics and Citizenship.

Another example is the video on the Magna Carta, prepared in 2015 to mark the 800th anniversary of the sealing of the Magna Carta in 1215. In 2016–17, it was downloaded around 50,000 times—an extraordinary outreach.

International engagement

A further aspect of the Commission’s work is international engagement, both in the treaty reporting cycles but also in the field of international technical cooperation, assisting in capacity building particularly in our Asia-Pacific region.

I have been struck by the complexity of the layers of international engagement through the UN and its various ‘mechanisms’—all of which has grown as the UN itself has grown. As the ‘national human rights institution’, or NHRI, the Commission has a distinct place. As an ‘A status’ body, under the rating system for NHRIs,  the Commission is entitled to participate directly in the work of the Human Rights Council, including the right to speak during annual plenary sessions. These rights are superior to those enjoyed by international NGOs, or ‘civil society’ as they are collectively known in the UN lexicon—not only in the sessions of the Council itself, but also the subsidiary ‘mechanisms’, including the committees for each of the Treaties and the Special Procedures processes.

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. Support for NHRIs is one of the pillars of Australia’s commitments in taking on that role.

In the tripartite architecture of UN engagement, the Commission therefore has a distinct role. As the national human rights institution, the Commission is in the middle: between government on the one hand, and civil society, on the other. We're neither one nor the other—and are independent of both. We are not the government’s lackey nor the nation’s soapbox, in other words.
It is necessary to the effective functioning of the Commission over the longer term to be a trusted adviser. I learned this in my ALRC role: that good relationships and open doors are absolutely crucial for us to be able to play that role to its fullest.

Mrs Roosevelt

This year also marks the 70th anniversary of the Universal Declaration of Human Rights and as we approach the 10th December I wanted to conclude with some reflections about Eleanor Roosevelt.

The recently widowed Mrs Roosevelt, wife of Franklin D Roosevelt, President of the US from 1933 to 1945, was tall—at 1.8m or 5ft 9” in ‘old money’—a voracious reader, a terrible cook, but a great hostess. She had a commanding way about her and adored her fox furs. Her biographer, Professor Mary Ann Glendon (a wonderful family law professor), wrote of her departure for the meetings that were to take place in London. When the time came for departure, ‘as so often before in her life, she did what had to be done’. ‘She donned her hat and coat, tossed her trademark fox furs over her shoulder, and boarded the ocean liner still painted grey from use as a troop ship’. 

She also approached her role with some trepidation. To her daughter, Anna, she wrote privately that ‘tho the responsibility seems great I’ll just do my best and trust in God’. 

Mrs Roosevelt managed to steer the Third Committee through its work, adopting a strategy of entertaining (notwithstanding her limitations in the culinary department). She recognised the value of the communications and relationships that build around the simple fact of engaging informally. She was a natural leader, drawing together the strengths of the key people, like Peng-chun Chang, a Chinese philosopher, diplomat and playwright; René Cassin, a French law professor, and a Jew, who had lost 29 relatives in concentration camps; and Charles Malik, a Lebanese academic, philosopher and diplomat and chief spokesman for the Arab league. These personalities framed the story of the drafting of the University Declaration.

Of Eleanor Roosevelt, Mary Ann Glendon wrote:

Neither she nor anyone else suspected that, at age sixty-two, she was on a course that would lead to the most important achievement of her already distinguished public life’.

If I had one wish at this stage of my life it is to aspire to having this said of me at the conclusion of my term.