The role of the Australian Human Rights Commission as the national human rights body in promoting and protecting rights
15 June 2018
[Professor Croucher spoke to this paper. Check against delivery.]
Thank you, Vice-President Virginia Gordon, 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.
In preparing for this address I was delighted to find that I have a real affinity with the Club’s founders, especially Rose Scott, one of the first Vice-Presidents. I came across Rose in my doctoral work. I was tracing the idea of testamentary freedom as a balancing act between ideas of property and ideas of family, and the introduction of female suffrage was a pivotal moment in that history. So I came to know the movers and shakers in the suffrage movement in NSW quite intimately. Rose, a foundation member of the National Council of Women and President of the Women’s Political and Educational League, ‘Australia’s most significant first wave feminist’, was the main driving force in the campaign for what became the Testator’s Family Maintenance and Guardianship of Infants Act 1916. That story is a fascinating one, but of course I am not here to talk about that today.
My appointment to the role of President of the Australian Human Rights Commission was announced a year ago tomorrow. I remember it well. I was in Melbourne to give a speech to mark Elder Abuse Awareness Day and news leaked via a Canberra Times journalist of the appointment. There had been a fair amount of speculation as to whom might be appointed, and my name was nowhere on anyone’s lists. (Usually the kiss of death in such statutory appointments). At least the press comments and support from both sides of the political spectrum were mainly very supportive.
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.
My leadership style is an organic one. I am not a ‘crash in and crash through’ manager, imposing new structures, getting rid of people, without question. I get to know the people I am to work with, find out their strengths, aspirations and desires, play to their strengths and help them to address problems. It is slow, and nurturing, with my eyes on a longer horizon.
First, I wanted to learn thoroughly about the Commission—its history, its current role and where it sits both nationally and internationally.
The first 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). The Act establishing this first Commission included a sunset clause under which the first Commission ceased operation in 1986. Perhaps it was assumed that Australia would have it all sorted out within that time!
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. (It was first called the Human Rights and Equal Opportunity Commission, or HREOC, and renamed in 2008).
The ratification of the ICCPR provided a crucial catalyst to the establishment of the Commission. The then Attorney-General, the Senator Hon Peter Durack QC, 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 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. The first was in the area of racial discrimination, and the Commission developed around this initial foundation, originally named the ‘Commissioner for Community Relations’.
Our current complement includes Commissioners in the areas of:
- Human Rights
- Aboriginal and Torres Islander Social Justice
- Race Discrimination
- Age Discrimination
- Sex Discrimination
- Disability Discrimination
The Commission has a number of broad roles. The complaints handling role, for complaints of discrimination on specific grounds under the set of anti-discrimination Acts, is a key one, because it is the ability of an individual to bring a claim under the legislation that is the principal way to enforce those laws. What surprises many, however, is that the discrimination commissioners have no role in hearing complaints, since 1999. They initially did have this role, but in 1995 the High Court held that the enforcement mechanism in the Racial Discrimination Act 1975 was found to be unconstitutional. This then led to the current processes, based on confidential complaint handling through conciliation.
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. The processes are conducted confidentially, and protected through non-disclosure provisions, essential to the integrity of, and confidence in, the process.
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. One simple example is of the teaching resources and video prepared for the 800th anniversary of the sealing of the magna carta of 1215. Aimed at high school students, the video was accessed around 50,000 times last year
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 Treaty Bodies and Special Procedures
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. Good relationships and open doors are absolutely crucial for us to be able to play that role to its fullest. To be the Devil’s Advocate and, as I have said, even at times to be the ‘devil’s blowtorch’, you need to have a respected seat at the table. 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.
This year also marks the 70th anniversary of the Universal Declaration of Human Rights and, in the Women’s Club, it is particularly important to note the role of one remarkable woman, Mrs Eleanor Roosevelt.
The recently widowed Mrs Roosevelt, wife of Franklin D Roosevelt, President of the US from 1933 to 1945, was asked to chair the ‘Third Committee’ that led the drafting of the UDHR.
She 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 and ‘organic’ leader in the way I described earlier, drawing together the strengths of the key people: 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.
In 1838, the Scottish philosopher, Thomas Carlyle, described history as ‘the essence of innumerable biographies’. In my legal historical excursions in the past I have been singly affected by how much the stories of individuals sit behind the story of law—innumerable biographies, in Carlyle’s words.
The history of the Universal Declaration of Human Rights, is not only ‘the essence of the lives’ of the men of the Third Committee, but also the essence of the indomitable woman in its Chair. There will be much to be written this year about the UDHR and its influence on the covenants that followed.
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.