Annual Report 1999-2000: The Commission

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Annual Report 1999 - 2000

The Commission

Vision

An Australian society in which the human rights of
all are respected and promoted.

Mission

To provide leadership
on human rights through:

• building partnerships
  with others; having a constructive relationship with government;
• being responsive
  to the community; and
• promoting community
  ownership of human rights.

To ensure that Australians:

• have access
  to independent human rights complaint handling and public inquiry
  processes;
• and benefit
  from human rights education, promotion, monitoring and compliance
  activities.

As an effective organisation,
we are committed to:

• unity of purpose;
• valuing our
  diversity and creativity; and
• the pursuit
  of best practice.

Structure

The Commission is
an organisation established under the Human Rights and Equal Opportunity
Commission Act 1986. It has a President and six Commissioners. The six
positions are currently held by four persons.

President, Professor
Alice Tay

Professor Tay is
a lawyer and an academic. She is Challis Professor of Jurisprudence with
the University of Sydney Faculty of Law. Her work is focused on socialist
legal systems and legal culture (including the former Soviet Union, Vietnam
and the People's Republic of China); comparative law and macro-sociology
of law; legal and social philosophy; jurisprudence; human rights and Asian
Pacific legal systems. She speaks Russian and Chinese.

She has lectured
in many countries and was Distinguished Visiting Professor of Law, Humanities
and Social Sciences, and Visiting Fellow, in the United States, Canada,
the People's Republic of China, Italy, Japan and Germany. She is the author
and editor, and co-author and co-editor (with the late Eugene Kamenka),
of 20 books and over 120 articles.

As Director of the
Centre for Asian and Pacific Law in the University of Sydney, she has
been very active in organising and conducting intensive legal and human
rights training courses for Vietnam and the People's Republic of China.
She was a part-time Commissioner with the Australian Law Reform Commission,
a member of the Australian Science and Technology Council, and President
of the International Association for Philosophy of Law and Social Philosophy.
She is a member of the International Legal Services Advisory Committee
of the Attorney-General's Department.

Human Rights Commissioner

Chris Sidoti has
held the following positions during his career: National Secretary of
the Catholic Commission for Justice and Peace; Deputy President of the
Australian Council of Social Services; President of the Youth Affairs
Council of Australia; head of the Director General's Unit within the NSW
Department of Youth and Community Services; foundation Secretary of the
Human Rights and Equal Opportunity Commission; and, immediately before
his current appointment, a Commissioner at the Australian Law Reform Commission.

Mr Sidoti is presently
a member of the Advisory Council of the Australian Association of Young
People in Care, the National Executive of the National Association for
the Prevention of Child Abuse and Neglect, the Human Rights Council of
Australia, the Advisory Council of the Asia Australia Institute and the
Board of the International Bureau for Children's Rights.

Aboriginal and
Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination
Commissioner, Dr Bill Jonas

Until his appointment
as Social Justice Commissioner, Dr Bill Jonas was Director of the National
Museum of Australia and from 1991-96 was Principal of the Australian Institute
of Aboriginal and Torres Strait Islander Studies in Canberra. Dr Jonas
comes from an academic background. Before becoming Director of Aboriginal
Education at Newcastle University in 1990, he was a lecturer in geography
at the University of Newcastle and before that at the University of Papua
New Guinea.

In the mid 1980s,
Dr Jonas was a Royal Commissioner with the late Justice Jim McClelland
on the Royal Commission into British Nuclear Tests in Australia. He has
held positions on the Immigration Review Tribunal, the Australian Heritage
Commission and the Joint Ministerial Taskforce on Aboriginal Heritage
and Culture in NSW.

Dr Jonas holds a
Bachelor of Arts degree from the University of NSW, a Master of Arts degree
from the University of Newcastle and a PhD from the University of Papua
New Guinea.

Dr Jonas has been
acting Race Discrimination Commissioner since September 1999.

Sex Discrimination
Commissioner and Acting Disability Commissioner, Susan Halliday

Prior to her appointment
as the Sex Discrimination Commissioner, Susan Halliday was an Assistant
Director with the Business Council of Australia where she was responsible
for policy development, advocacy, coordination of research and member
company employee relations, employment, human resource management and
education and training activity.

Previously Ms Halliday
was the Assistant Director with the private sector Council for Equal Opportunity
in Employment and also worked for BHP in a range of positions. Over the
past decade Ms Halliday has lectured at a number of universities and was
originally a secondary school teacher of History and English.

Ms Halliday is currently
Chair of the National Centre for Women (Swinburne University) and a board
member of Australians Against Child Abuse and the Australian Student Traineeship
Foundation.

Ms Halliday has been
acting Disability Discrimination Commssioner since 1999.

Privacy Commissioner,
Malcolm Crompton

Between 1996 and
1999, Malcolm Crompton was AMP's Manager of Government Affairs in Canberra,
representing the organisation in its relations with Government. In partnership
with AMP's business units, he helped with the strategic management of
major public policy issues for AMP.

Mr Crompton's distinguished
career in the Department of Finance includes management roles in: Employment;
Expenditure; Social Security; Retirement Benefits; and Transport and Industry.

He was Founder Trustee
of the Australian Government Employee Superannuation Trust, served as
adviser to the Parliamentary Retiring Allowances Trust and was an Alternate
Trustee of the Commonwealth Superannuation Scheme and the Public Sector
Superannuation Scheme.

Mr Crompton has also
served on various other Government Committees, including the Steering
Committee on the Rewrite of the Public Service Act (1995 - 1996), the
Steering Committee on the Evaluation of Working Nation (1995_96) and the
International Monetary Fund Panel of Fiscal Experts.

From 1st July 2000,
the Privacy Commissioner is no longer a member of the Commission.

Legislation

The Commission is
responsible for implementing the following Acts:

• Human Rights
  and Equal Opportunity Commission Act 1986;
• Racial Discrimination
  Act 1975
• Sex Discrimination
  Act 1984
• Disability
  Discrimination Act 1992
• Privacy Act
  1988

Functions performed
under these Acts are vested in the Commission as a collegiate body in
the President or individual members of the Commission or in the federal
Attorney-General.

Other legislation
administered through the Commission includes functions under the Native
Title Act 1993 performed by the Aboriginal and Torres Strait Islander
Social Justice Commissioner. The Sex Discrimination Commissioner has functions
in relation to federal awards and equal pay under the Workplace Relations
Act 1996

Legislative changes
to the Commission

The Human Rights
Legislation Amendment Act No. 1 1999 (Cth) the Amending Act received Royal
Assent on 13 October 1999. Its substantive provisions commenced on 13
April 2000. The effect of the major amendments contained in the Act is
to:

• transfer the
  power to hear complaints of unlawful discrimination from the Commission
  to the Federal Court;
• transfer all
  complaint handling powers from the Race, Sex and Disability Discrimination
  Commissioners to the President;
• remove the
  internal Presidential review function from the Racial Discrimination
  Act, Sex Discrimination Act and Disability Discrimination Act, and
  provide that where a complaint is declined by the President, the complainant
  will be able to go directly to the Federal Court;
• remove the function
  of the President or Commission to grant interim determinations and
  vest a function to grant interim injunctions in the Federal Court;
  and
• create the role
  of amicus curiae for all Commissioners in proceedings under the amending
  legislation that are before the Federal Court.

Human Rights and
Equal Opportunity Commission Act

The Human Rights
and Equal Opportunity Commission Act 1986 established the Commission.
The Act provides for the Commission's administration and gives it responsibility
in relation to the following seven international human rights instruments:

• International
  Covenant on Civil and Political Rights;
• International
  Labour Organisation Discrimination (Employment and Occupation)Convention
  (ILO 111);
• Convention on
  the Rights of the Child;
• Declaration
  on the Rights of the Child;
• Declaration
  on the Rights of Disabled Persons;
• Declaration
  on the Rights of Mentally Retarded Persons; and
• Declaration
  on the Elimination of All Forms of Intolerance and of Discrimination
  Based on Religion or Belief.

Racial Discrimination
Act

The Racial Discrimination
Act 1975 gives effect to Australia's obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination.

Its main areas are
to:

• promote equality
  before the law for all persons, regardless of their race, colour or
  national or ethnic origin; and
• make discrimination
  on the basis of race, colour, descent or national or ethnic origin,
  unlawful.

The Act was amended
in 1995 to provide protection against racial hatred.

Sex Discrimination
Act

The Sex Discrimination
Act 1984 gives effect to Australia's obligations under the Convention
on the Elimination of All Forms of Discrimination Against Women and certain
aspects of the International Labour Organisation (ILO) Convention 156.

Its main aims are
to:

• promote equality
  between men and women;
• eliminate discrimination
  on the basis of sex, marital status or pregnancy and, with respect
  to dismissals, family responsibilities; and
• eliminate sexual
  harassment at work, in educational institutions, in the provision
  of goods and services, accommodation and in the delivery of Commonwealth
  programs.

Disability Discrimination
Act

The objectives of
the Disability Discrimination Act 1992 are to:

• eliminate discrimination
  against people with disabilities as far as is possible;
• promote community
  acceptance of the principle that people with disabilities have the
  same fundamental rights as all members of the community; and
• ensure as far
  as practicable that people with disabilities have the same rights
  to equality before the law as other people in the community.

Privacy Act

The Privacy Act 1988
gives effect to OECD Guidelines on the Protection of Privacy and Transborder
Flows of Personal Data and the International Covenant on Civil and Political
Rights (Article 17). The Act provides legally binding protection for the
collection and use of personal information collected by federal government.

The Act also regulates
the use of tax file numbers and the handling of credit information by
the credit industry.

Functions and powers

The Commission's
responsibilities fall within four main areas:

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

In order to fulfil
its obligations, the Commission:

• fosters public
  discussion, and undertakes and coordinates research and educational
  programs to promote human rights and eliminate discrimination in relation
  to all Acts;
• investigates
  alleged infringements under the anti-discrimination and privacy legislation,
  and attempts to resolve these matters through conciliation, where
  this is considered appropriate. The President may terminate a complaint
  if there is no reasonable prospect of settling the complaint by conciliation.
  This applies to the Racial, Sex, Disability Discrimination and Privacy
  Acts;
• See Complaint
  Handling section for description of processes of termination of a
  complaint.
• if a complainant
  wants to have the complaint heard and determined by the Federal Court
  they must lodge an application to the Federal Court within 28 days
  of a notice of termination issued by the President.
• inquires into
  acts or practices that may infringe human rights or that may be discriminatory.
  If infringements are identified, the Commission formally reports on
  the case and recommends action to resolve the situation. This applies
  to the Human Rights and Equal Opportunity Commission Act; may advise
  on legislation relating to human rights and monitor its implementation;
  may review existing and proposed legislation for any inconsistency
  with human rights or for any discriminatory provision which impairs
  equality of opportunity or treatment in employment or occupation;
  may examine any new international instruments relevant to human rights
  and advise the Federal Government on their consistency with other
  international treaties or existing Australian law; and may propose
  laws or suggest actions the Government may take on matters relating
  to human rights and discrimination.

In order to carry
out these functions the Commission is empowered under all Acts (unless
otherwise specified) to:

1. refer individual
complaints to the President for investigation and conciliation;

2.require persons
to produce information or documents or appear before the Commission
to give evidence in public hearings related to individual complaints;

3.report to the
Government on any matters arising in the course of its functions;

4.establish advisory
committees;

5.formulate guidelines
which ensure governments act in conformity with human rights rules;

6.intervene in
court proceedings involving human rights matters;

7.grant exemptions
under certain conditions (Sex and Disability Discrimination Acts);
and

8. conduct national
inquiries into issues of major importance - either on its own initiative
or at the request of the Attorney-General.

Specific functions of Commissioners

In addition to the
broad functions outlined above, a number of Commissioners have specific
responsibilities.

Aboriginal and
Torres Strait Islander Social Justice Commissioner

The Aboriginal and
Torres Strait Islander Social Justice Commissioner, under the Human Rights
and Equal Opportunity Commission Act, prepares an annual report on the
exercise and enjoyment of human rights of Indigenous people, and undertakes
social justice education and promotional activities. The Commissioner
has no power to receive complaints under this Act.

The Commissioner
also performs separate reporting functions under the Native Title Act
1993 This includes preparing an annual report on the operation of the
Act and its effect on the exercise and enjoyment of human rights of Indigenous
people. The Commissioner also reports, when requested by the Minister,
on any other matter relating to the rights of Indigenous people under
this Act.

Privacy Commissioner

Under the Privacy
Act, the Privacy Commissioner has specific functions in relation to complaint
handling and investigation of breaches of the Act, and auditing and monitoring
compliance with the Act. There is provision in the Act for the Privacy
Commissioner to make public interest determinations, which fulfil a similar
role to exemptions under the anti-discrimination legislation. The Commissioner
also provides policy advice and promotion of privacy issues to encourage
adoption of privacy standards more broadly in the community. The Commissioner
also performs functions under the following legislation:

• that the Commissioner
  administers Part VIIC of the Crimes Act 1914, the Commonwealth `Spent
  Convictions Scheme'. This law provides protection for individuals
  with old minor convictions in certain circumstances. The Privacy Commissioner
  has a role to investigate breaches of the legislation. The Commissioner
  is also required to provide advice to the Attorney-General in relation
  to exemptions under the scheme;
• that the Data-matching
  Program (Assistance and Tax) Act 1990 regulates data-matching between
  the Tax Office and four assistance agencies to detect overpayments,
  ineligibility for assistance and tax evasion. Under the Act, the Commissioner
  is responsible for issuing guidelines for protecting privacy, investigating
  complaints and monitoring agency compliance;
• that under the
  National Health Amendment Act 1993, the Commissioner is required to
  issue guidelines which cover the storage, use, disclosure and retention
  of individuals' claims information under the Pharmaceutical Benefits
  Scheme and the Medicare program; and
• that the Commissioner
  has a range of monitoring and compliance functions under the new Telecommunications
  Act 1997.

From 1st July 2000
the Privacy Commission is no longer a member of the Commission. See Privacy
Commissioner's statement.

Sex Discrimination
Commissioner

The Workplace Relations
Act 1996 gives the Sex Discrimination Commissioner the power to initiate
and refer equal pay cases and other specific matters to the Industrial
Relations Commission.

The Minister

The Attorney-General,
the Honourable Daryl Williams, AM, QC, MP, is the Minister responsible
in Parliament for the Commission. He has a number of powers under the
Human Rights and Equal Opportunity Commission Act.

The most significant
are:

• to make, vary
  or revoke an arrangement with states or territories for the performance
  of functions relating to human rights or to discrimination in employment
  or occupation;
• to declare,
  after consultation with the states, an international instrument to
  be one relating to human rights and freedoms for the purposes of the
  Act; and
• to establish
  an advisory committee (or committees) to advise the Commission in
  relation to the performance of its functions. The Commission will,
  at his request, report to him on Australia's compliance with International
  Labour Organisation Convention 111 and advise him on national policies
  relating to equality of opportunity and treatment in employment and
  occupation.

Last
updated 1 December 2001.