SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE ON THE AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION BILL 2003
You can also access:
- HREOC's Submission on to the Senate Legal and Constitutional Legislation Committee on the Australian Human Rights Commission Legislation Bill 2003
- Opening Statement by Prof Alice Tay - delivered by Dr William Jonas on behalf of Prof Tay at the public hearing held in Sydney on 29 April 2003
- Statement by Dr William Jonas - delivered at the public hearing held in Sydney on 29 April 2003.
A strong and independent national human rights organisation is crucial to promote and protect fundamental values of fairness, equality, tolerance and non-discrimination.
Since its establishment in 1986, the Human Rights and Equal Opportunity Commission has successfully worked to foster greater understanding, respect and protection of human rights in Australia, with a particular focus on sex, race and disability discrimination, as well as the rights of Indigenous Australians.
This has been achieved through an effective complaint-handling process, an extensive education program, inquiries into issues of national importance and using its intervention and amicus curie functions to assist the courts in cases that involve human rights principles.
The success and vitality of the Commission is reflected in the fact that many other nations, particularly those in the Asia Pacific region, have modelled their own national human rights institution on Australia's.
However, proposals contained in the Australian Human Rights Commission Legislation Bill 2003 have the potential to significantly undermine the integrity, independence and efficiency of the Commission.
This is not the first time that attempts have been made to restructure the Commission and propose amendments that would restrict its independence. Similar proposals were contained in the Human Rights Legislative Amendment Bill (No.2) 1998, which were not supported at the time by the Senate Legal and Constitutional Legislation Committee.
This paper summarise the Commission's major concerns with the Australian Human Rights Commission Legislation Bill 2003 currently being reviewed by the Senate Legal and Constitutional Legislation Committee.
Restricting the Commission's right to intervene in matters before the courts
The Commission is able to seek leave of the court to intervene in cases that raise human rights or discrimination issues. The role of the intervener is to provide specialist advice, independent from the parties to a case. This is particularly important in the High Court where complex legal principles and policies are at stake, especially in constitutional cases. Since it was established in 1986, the Commission has intervened in 35 cases. These include interventions in cases involving family law issues, child abduction, the rights of refugees and asylum seekers, sex and marital discrimination, native title and other general human rights issues.
The Commission has never had an application to seek leave to intervene rejected by a court. The cost of the Commission's 18 interventions in the past three financial years is approximately $200,000, or 0.5% of the Commission's budget in that period.
The Commission would only be able to seek leave to intervene in a case with the approval of the Attorney-General. However, the Commission would not require approval from the Attorney-General if the Commission's President is, or was, a federal judge.
The Commission opposes the amendment as it:
- compromises the independence of the Commission by bringing the right to argue human rights issues before the courts under political control;
- raises an actual or perceived conflict of interest if the Commonwealth is a party to a case in which the Commission seeks to intervene (of the 35 cases in which the Commission has intervened, the Commonwealth has been a party in 18 cases and made submissions contrary to the Commission in 16 cases);
- pre-empts the authority of the courts to determine whether it will grant the Commission leave to intervene in a case;
- effectively creates 'two classes' of Presidents.
Abolishing the position of specialist Commissioners
Under its establishing legislation, the Commission is comprised of:
- the President;
- the Aboriginal and Torres Strait Islander Social Justice Commissioner;
- the Disability Discrimination Commissioner;
- the Human Rights Commissioner;
- the Race Discrimination Commissioner; and
- the Sex Discrimination Commissioner.
Since December 1997, the Human Rights Commissioner has also been the Acting Disability Discrimination Commissioner. Since September 1999, the Aboriginal and Torres Strait Islander Social Justice Commissioner has been the Acting Race Discrimination Commissioner.
The structure of the Commission would be altered to consist of:
- a President; and
- three Human Rights Commissioners.
The Commission opposes the amendment as it:
- will reduce the ability of the Commission to do its job effectively by undermining the strong relationships established by specialist Commissioners with their constituent groups;
- does not require a Commissioner be responsible for Indigenous issues or reflect the present requirement that the Social Justice Commissioner be an Indigenous person, or have significant experience in the life of Indigenous communities;
- could result in significant public confusion and resentment, leaving disadvantaged groups without the advocacy of a specialist Commissioner;
- is unnecessary to achieve the flexibility and cross-portfolio work that the Commonwealth proposes will be achieved by having generalist Commissioners.
Limiting the Commission's inquiry powers under the HREOC Act
Under the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA), the Commission has the power to inquire into acts or practices of the Commonwealth that may breach a person's human rights, as well as inquire into acts or practices of any employer in relation to discrimination in employment. Following an inquiry, the Commission may report its findings to the Attorney-General and can include a recommendation of financial compensation.
The Commission would be unable to recommend financial compensation when inquiring into complaints under the HREOCA.
The Commission opposes the amendment as it:
- removes a legitimate form of redress that the Commission can recommend;
- denigrates and trivialises the pain and suffering, or financial loss, that a complainant might have experienced;
- reduces the likelihood that a respondent will seek to settle a complaint.
Removal of the President's delegation powers under the HREOCA
The Bill would remove the President's ability to delegate inquiry powers under the HREOCA to the Human Rights Commissioner.
The Commission opposes the amendment as it fails to allow the President to make full use of the expertise brought to the Commission by the Human Rights Commissioner.
Further, the Commission argues that the President should have the power to delegate inquiry powers under the HREOCA to any member of the Commission to ensure the most appropriate person undertakes the inquiry.
Appointment of 'Complaints Commissioners'
The Attorney-General would have the power to appoint part-time 'Complaints Commissioners' to assist with inquiries into breaches of human rights and complaints of discrimination.
The Commission opposes the amendment as:
- the Commission's current complaint-handling system is working in an efficient and timely manner, with no backlog of complaints;
- the President already has the ability to delegate her powers to Commission staff, as well as to a person outside the Commission.
Prioritising the Commission's legislative functions
The Commission's 'sets of functions' would be re-ordered to make education and dissemination of information on human rights the Commission's primary focus.
The Commission does not oppose the amendment. However, the amendment is unnecessary as significant resources are already directed towards public education and information distribution.
Recent education initiatives undertaken by the Commission include:
- Human rights education modules and resources for teachers and students, including the Youth Challenge program;
- Face the Facts: Some Questions and Answers on Immigration, Refugees and Indigenous Affairs - more than 100,000 copies distributed to schools and community groups;
- Pregnancy Guidelines for employers to develop 'pregnancy-friendly' workplaces, arising from the National Pregnancy and Work Inquiry;
- Sexual Harassment: A Code of Practice - thousands of copies distributed to workplaces across Australian, with an updated version to be released shortly;
- Report of Ten Years Achievement of the Disability Discrimination Act;
- Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families - distribution of the Community Guide and Video Report, as well development of curriculum-linked education material for schools.
Renaming the Commission, with a legislated 'by-line'
The Commission will be renamed the Australian Human Rights Commission. It is further proposed that the by-line, 'Human rights - everyone's responsibility', be incorporated into the Commission's logo.
The Commission does not oppose its renaming to the Australian Human Rights Commission. However, the Commission is of the view that there is no need to have a by-line, especially not one that it is legislatively required to use.Last updated 29 April 2003.