Human Rights and Equal Opportunity Commission
Annual Report 2001-2002
Statement from the President
Human Rights and Equal Opportunity Commission occupies a unique place
in Australian society. It sits independent of Government, yet it is
not what is traditionally known as a non-government organisation (NGO)
or an advocate.
In fact it is
a statutory authority responsible for ensuring the observance of human
rights in Australia. The Commission seeks to promote an understanding
and acceptance of human rights in Australia; undertakes research to
promote human rights; investigates and attempts to conciliate complaints
about breaches of human rights or of equal opportunity laws; intervenes
or acts as amicus curiae in important legal cases that may
affect the human rights of people in Australia; examines laws related
to human rights; and provides advice to government on laws and actions
that are required to comply with international human rights obligations.
While the core
functions of the Commission remain unchanged, I would argue that the
Commission over the past year has devoted most of its energy to legal
work, its education role and, for Commissioners, to engaging in public
debate via the media and other avenues on key human rights issues
in Australia. I wish to praise in particular the work of Commissioners
on major policy initiatives including paid maternity leave, children
in detention and social justice and native title issues.
human rights and discrimination - including the development of school-based
education programs - has been central to the Commission's activities.
Another of the
Commission's core functions is the conduct of national inquiries on
important human rights issues and the National Inquiry into Children
in Immigration Detention is still in progress at the time of writing.
The loss of the
public hearing function in April 2001 (when amendments to the Human
Rights and Equal Opportunity Commission Act took effect) produced
a change of focus for the Commission from determining complaints to
conciliation of complaints. Complaints unable to be conciliated by
the Commission are now terminated and can be taken to the Federal
Court of Australia or Federal Magistrates Service.
The success of
the Commission's transition to this new role is detailed in the Complaint
Handling chapter of this Report. Parties to complaints remain willing
to embrace conciliation and 30 percent of the matters finalised last
year were successfully conciliated. Eighty eight per cent of complaints
were finalised within 12 months of lodgement.
There was some
public debate and consternation about the change of jurisdiction for
the hearing of human rights complaints when the legislative changes
were mooted and when they came into effect. An analysis of the impact
of the changes over the past 18 months is expected to be available
by the end of 2002.
believes that all children in Australia deserve to have accurate information
about the nature of human rights and social responsibilities for them
and about discrimination laws.
Over the past
year, the education function of the Commission has received unprecedented
attention and the Commission, with relatively limited resources, has
managed to develop a comprehensive education program for schools.
Youth Challenge program - which in the past has involved day
long workshops, mainly on discrimination issues - has been expanded
and is now more heavily reliant on the Internet. The program was short
listed for The Australian's 2002 Awards for Excellence in Educational
Public Affairs Unit has consulted widely with teachers and students
and conducted surveys on its electronic mailing lists to obtain feedback.
Promotion has been via advertisements in teachers' journals, posters
and postcards and direct contact with all secondary schools. Website
statistics indicate large numbers of people are accessing the Youth
Challenge online materials.
I launched the
first online Human Rights Education "Youth Challenge"
program in December 2001. Since then, the Commission has restructured
its website to provide to teachers a range of material for teaching
human rights and responsibilities. The Public Affairs Unit is also
developing discrete teaching modules on current issues. The first
was on the Stolen Generation and linked to the 2001 movie Rabbit-Proof
Fence, based on Doris Pilkington's book. A further module on paid
maternity leave and other issues about work and family was being developed
towards the end of the financial year and others are planned.
In relation to
legal action, the Commission can act as amicus curiae or "friend
of the court" and can intervene in relevant cases. The Commission
has had a function of acting as an Intervener in certain court proceedings
since the Human Rights and Equal Opportunity Commission Act commenced
in 1986, but the amicus curiae role given to each individual
Commissioner only came into effect in April 2000.
role in legal proceedings, as an intervener or an amicus curiae,
cannot be under estimated. Decisions to seek leave to appear before
the court - usually the Federal Court of Australia or High Court -
to take part in the proceedings are not taken lightly. They are subject
to due deliberation by Commission members and sometimes decisions
are made under extreme time pressure.
has also been careful to choose proceedings involving issues of public
importance which may effect to a significant extent persons other
than the parties before the Court. With the Court's permission, the
Commission can intervene in proceedings involving any human rights
issues; i.e. human rights as defined in six named International conventions;
in proceedings involving discrimination in employment or occupation;
and in race, sex, marital status, pregnancy or disability discrimination
During the past
year, the Commission has intervened in a number of cases with substantial
human right's implications, including the controversial and highly
politically-charged case involving the Merchant Vessel Tampa carrying
433 asylum seekers to the Australian Territory of Christmas Island.
decision to intervene in the "Tampa" case was conducted
in an atmosphere that was political and emotionally volatile and in
which firsthand knowledge of the asylum seekers' plight and circumstances
was unobtainable. It is important in circumstances such as the
"Tampa" case that the Commission continues to support
legal avenues to ensure that people's human rights are protected.
It is important, too, for there to be recognition that the Commission
does not act as a barometer of public opinion; that human rights are
universal and immutable and not a commodity.
arguments in the "Tampa" case, which can be found
on the website and are referred to in more detail in the legal chapters
of this report, were heard in the Federal Court of Australia (before
Justice North), in the Full Federal Court and the High Court.
Last year the
High Court granted leave for the Commission to intervene in what became
known as the "Catholic Bishops" or "IVF"
case about the provision of reproductive assistance technology to
single mothers. The Commission welcomed the outcome of that litigation
which enabled single women to receive IVF in Victoria. The Federal
Government has foreshadowed amendments to the Act. However, the Commission
will oppose such amendments and argue against any attempts to undermine
the Sex Discrimination Act.
Other cases in
which the Commission has intervened include:
- Family law
proceedings including the validation of the marriage of a female
to a male transsexual person (the "Kevin and Jennifer"
cases including access by people in detention to legal representation,
the legal guardianship arrangements for unaccompanied minors and
the detention of criminal deportees who had served their sentences.
The Commission also intervened in a case involving the legal validity
of a provision of the Migration Act that purports to restrict certain
matters from review by Federal and High Courts (the "privative
clause" case, which relates to the extent to which administrative
decision makers are obliged to take account of human rights instruments
in making their decisions).
- Native title
cases including the "Yorta Yorta" case.
To date, only
the Sex Discrimination Commissioner has acted as amicus curiae
- in Ferneley v Boxing Authority of NSW and State of
NSW. In that case, the court accepted that the proceedings had
significant implications for the administration of the Sex Discrimination
Act and it was in the public interest for the Commissioner to act
as amicus curiae. It is hoped that exercising this role will
assist with the development of a body of anti-discrimination jurisprudence
and assist parties to focus on the issues and ultimately resolve the
continues to play an active role in the promotion of human rights
internationally especially in providing technical assistance and expertise
to new and emerging national human rights institutions.
One of the Commission's
major projects is the China-AustraliaHuman Rights Technical Cooperation
program which falls under the Australia-China Human Rights Dialogue,
a government to government program initiated in 1997. The program
focuses on three broad areas - legal reform and the administration
of justice, women and children's rights and ethnic and minority rights.
In 2001-02 activities included the training of prison officers, a
workshop to design a training course for judges, a domestic violence
workshop and a project to assist women's groups in two provinces to
combat trafficking in women and children.
I was also invited
to join the inaugural session of the Australia-Vietnam Dialogue on
International Organisations and Legal Issues, conducted in May 2002,
which I hope will develop into a full, constructive dialogue similar
to the program involving China.
formal assistance program with Komnas Ham, the Indonesian Human Rights
Commission, concluded this year but the support of the Indonesian
and Australian Governments suggest that there will be further cooperation
between the two countries.
The Asia Pacific
Forum of National Human Rights Institutions, of which the Commission
is a founding member, admitted Mongolia to its membership at the sixth
annual meeting in Colombo, Sri Lanka. The incorporation of the Forum
as an independent entity (it currently has a secretariat based in
the Commission's office in Sydney) happened in March 2002.
currently has three Commissioners acting in five statutory roles -
including Dr William Jonas (Aboriginal and Torres Strait Islander
Social Justice Commissioner and acting Race Discrimination Commissioner);
Dr Sev Ozdowski (Human Rights Commissioner and acting Disability Discrimination
Commissioner) and Ms Pru Goward (Sex Discrimination Commissioner).
Legislation intended to change the structure of the Commission to
create three deputy presidents is still before the Federal Parliament.
the Commissioners over the past year are highlighted in their own
statements throughout the Annual Report. Suffice to say, they have
been actively engaged in public debate about human rights issues through
the media, through publications, presentations and speeches, in addition
to their policy work.
initiatives and activities during 2001-02 included a national push
for paid maternity leave, a year long process to raise awareness of
racism (including participation in the World Conference against Racism
in Durban in September 2001 and a host of related domestic activities)
as well as a National Inquiry into Children in Immigration Detention.
Inquiry has the potential to have as big an impact on our understanding
of the situation for children kept in Australia's detention centres
as the "Stolen Generation" report had on our understanding
of the removal of Indigenous children from their families.
In the area of
disability discrimination, the Commission hosted a summit of peak
disability groups in December 2001 and has been a key player in developing
standards for accessible public transport and has continued liaison
with industry groups, government and disability rights organisations
to improve accessibility across other areas.
launch of her options paper on paid maternity leave "Valuing
Parenthood" Ms Goward embarked on an extensive public education
campaign and a series of meetings with key organisations including
employer and employee groups and social policy demographers.
Over the past
year, Dr Jonas has questioned the direction of the reconciliation
debate, making the issue of progress towards reconciliation the central
issue of his 2001 Social Justice and Native Title Reports.
In his reports, Dr Jonas expressed serious concerns about the nation's
progress in recognising and respecting Indigenous rights and called
for a Senate inquiry to examine the documents produced by the Council
for Aboriginal Reconciliation and the recommendations of the Social
Justice Report 2000.
Some major challenges
facing the Commission in the year ahead arise from the repercussions
of the September 11 terrorist attacks in the United States and the
worldwide movement of populations, many of them asylum seekers, which
have been felt in Australia.
- whether real or imagined - have the potential to compromise the
rights of people within a nation under the guise of protecting national
sovereignty. In 2001-02, the federal Government passed laws aimed
at limiting access to the Australian mainland and the refugee processing
system and to introduce more rigorous procedures for detecting terrorist
and other security threats. The Commission has commented on the human
rights and international law implications of changes to the Migration
Act and proposed amendments to the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill 2002 and related
bills pointing out the potential for breaches of human rights.
will continue to monitor implementation of such laws and their impacts
on the human rights and freedoms of the people of Australia.
It is precisely
at such times - when a nation expresses fears of vulnerability - that
the rights of the truly vulnerable are in danger of being brushed
aside. It is also a time when the general population may agree to
a "lowering of the bar" of rights and freedoms in exchange
for other benefits. At such times, the role of an independent national
human rights institution, operating without fear or favour, is crucial.