SUBMISSION

BY THE HUMAN RIGHTS COUNCIL OF AUSTRALIA

TO THE SENATE LEGAL AND CONSTITUTIONAL COMMITTEE ON THE AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION BILL 2003

INTRODUCTION

The Australian Human Rights Commission Legislation Bill 2003 would make a number of significant changes to the Human Rights and Equal Opportunity Commission Act 1986 and other legislation to effect changes to the name, structure and operation of Australia’s national human rights institution. Some of these changes, for example, the change of name, are positive. Others, for example, the abolition of specialist commissioners and the imposition of an Attorney General’s consent for Commission intervention in court proceedings, would set back the promotion and protection of human rights in Australia. This submission addresses issues arising from the Bill. It also points to areas where the Commission’s legislation could be strengthened rather than diminished.

The Human Rights and Equal Opportunity Commission has an important part to play in protecting and promoting the full observance of human rights in Australia. Parts of the proposed legislation will compromise its role and reduce its effectiveness. The Human Rights Council of Australia urges Parliament to reject any amendments to the legislation establishing the Commission or administered by it that would or could have the effect of limiting its effectiveness in performing the mandate given it by the Parliament.

The present Government has been elected three times. This is its third attempt to re-structure the Human Rights and Equal Opportunity Commission. Previous attempts have failed but that has not prevented the Government from implementing many aspects of the failed changes on a de facto basis. This Bill repeats the most contentious aspects of previous attempts.

The Human Rights Council of Australia considers that those aspects of this attempt should be rejected again.

CHANGE OF NAME

The proposed new name for the Commission, Australian Human Rights Commission, is appropriate and supported. It has a number of benefits and no detriments. The proposed new title has the benefit of

• being short
• reflecting overwhelming current usage in reference to the Commission
• being consistent with international practice in naming national human rights institutions
• eliminating duplication.

The present name, Human Rights and Equal Opportunity Commission, reflects the origins of the present institution. It was established in 1986 as the replacement both of the first Human Rights Commission established in 1981 and the various committees established earlier than that to undertake functions in relation to International Labour Organisation Convention 111 on discrimination in employment and occupation. The name of the present Commission was chosen to reflect both the human rights functions and the anti-discrimination or, more positively, equal opportunity functions. The name is unnecessarily long and unwieldy. Anti-discrimination or equal opportunity is a sub-set of human rights. The words add nothing to the concept of human rights and so are unnecessary.

The Human Rights Council of Australia supports the proposed change in the Commission’s name to the Australian Human Rights Commission.

STRUCTURE OF THE COMMISSION

The Bill proposes to eliminate the five specialist commissioners in the present structure and replace them with three generic human rights commissioners. It also proposes to permit the Attorney General to appoint part-time complaints commissioners.

Amendments to section 8 of the Act would replace 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 with three generic human rights commissioners. The amendments to section 8B require the Attorney General to ensure that the Commission members “as a group have expertise in the variety of matters likely to come before the Commission”

When established in 1986 the Commission was constituted by the president and three specialist commissioners. The Aboriginal and Torres Strait Islander Social Justice Commissioner and the Disability Discrimination Commissioner were added in 1992 in further development of Commonwealth human rights legislation. Following its election in 1996 the present Government began a series of attempts to re-structure the Commission. First, it proposed replacing the five specialist commissioners with generic deputy presidents of the Commission. When this proposal drew strong opposition, especially from disability, indigenous and ethnic community groups, it was withdrawn and replaced by a significantly different proposal. While the second proposal maintained the reduction in the number of full-time officeholders from five to three, the three would remain specialists but with “doubled up” responsibilities. Specialisations on human rights and disability discrimination would be combined in the one person and specialisations on Aboriginal and Torres Strait Islander social justice and race discrimination would be combined in another person. To create an appearance of balance, the sex discrimination specialist would have equal opportunity added to the position’s title. This compromise proposal was also strongly criticised and it failed to pass the Senate.

Nonetheless since 1997 the Government has implemented the proposed structure on a de facto basis. There has been no Disability Discrimination Commissioner since then, the functions of that position being added to those of another commissioner by way of a series of acting commissioner appointments. When the first Aboriginal and Torres Strait Islander Social Justice Commissioner completed his term early in 1998, the then Race Discrimination Commissioner was appointed acting Aboriginal and Torres Strait Islander Social Justice Commissioner in addition to her existing duties. Shortly before she completed her term in 1999, a new Aboriginal and Torres Strait Islander Social Justice Commissioner was appointed. When the Race Discrimination Commissioner completed her term the Aboriginal and Torres Strait Islander Social Justice Commissioner was also appointed acting Race Discrimination Commissioner. These manoeuvres by the Government effectively implemented the amendments that failed to pass the Senate. They have placed the Government in breach of the law which provides that the Commission “shall consist of” the President and the five specialist Commissioners.

The international standards for national human rights institutions, the Paris Principles,[1] do not prescribe any particular structure for an institution. As a result institutions internationally have a wide range of structures. The present structure of the Australian commission is unique. Many institutions, including those of Fiji, India, Indonesia, New Zealand and the Philippines, have generic members. Others, such as New Zealand, combine generic and specialist members. In some countries, principally the United Kingdom and the Nordics, there is no single institution but a large number of separate bodies based on specialist areas, for example, racial, ethnic and cultural minorities, gender equality, disability, sexual orientation and children. The Australian commission uniquely combines specialisation within a single institution. In this way it has ensured that key areas of human rights concern receive specialist attention while maintaining the integrity of human rights as a comprehensive, integrated body of law. It would be detrimental to lose this unique approach. The Australian Commission’s structure, for example, has been seen by a British parliamentary committee as a possible model for a proposed UK Human Rights Commission.

The structure based on specialist commissioners has many advantages.

• Each commissioner and his or her staff have been able to develop expertise in the special human rights issues impacting on part of the community.
• The public advocacy and public education role played by the commissioner in respect of that set of issues has been the hallmark of the specialist commissioners and a particularly effective way in which they have contributed to the development and protection of human rights standards
• The specialist commissioners have earmarked responsibility for monitoring and promoting Australia’s compliance with particular international conventions and implementing Australian laws.
• The often quite distinct stakeholders who are particularly affected by violations of the particular human rights in questions have had a clearly identifiable officer to whom they can address their particular and unique concerns.

The Government’s apparent concern with the existing structure is that it could require the addition of further specialist commissioners. It is considering at present the long overdue introduction of federal age discrimination legislation. There is also need for federal legislation to protect and promote children’s rights and the rights of gay men and lesbians and to make religious discrimination and vilification unlawful. Apparently the Government is concerned at the costs and practicality of establishing new positions of commissioner. This concern is of a far lesser order of importance than the benefits to be gained from the specialist commissioner positions.

The Human Rights Council of Australia opposes the replacement of specialist commissioners with generic commissioners.

The Bill’s transitional provisions provide for the continuity in office of serving commissioners when any re-structure becomes effective. This provision is essential. The Paris Principles indicate that security of tenure of the members of a national human rights institution is one of the most important guarantees of the independence of the institution. The Government’s first attempt to re-structure the Commission did not include such a provision. In considering that Bill the Senate Committee recommended that it be amended to ensure the continuity of appointment of any commissioner whose term had not expired when any re-structure commenced. Inclusion of this arrangement in the present Bill is essential.

The Human Rights Council of Australia supports the provision for continuity in office of any serving member of the Human Rights and Equal Opportunity Commission when any re-structure of the Commission commences.

FUNCTIONS OF THE COMMISSION

The Bill proposes to re-order the list of the Commission’s functions to bring those related to human rights education and guideline setting to the top of the list (amendments to sections 11 and 31 of the Human Rights and Equal Opportunity Commission Act 1986, section 67 of the Disability Discrimination Act 1992, section 20 of the Racial Discrimination Act 1975 and section 48 of the Sex Discrimination Act 1986). This reflects the Government’s priority for uncontroversial human rights education over the investigation and exposure of human rights violations. The Bill also gives the Commission a new slogan, “human rights – everyone’s responsibility” (proposed new sub-section 11 (1A)), in line with the Government’s longstanding concern to promote the language of responsibilities rather than the language of rights.

These changes are largely cosmetic. They do not impair the Commission’s independence and do not prevent it doing what it deems necessary. Certainly human rights education is an important function and certainly the flipside of rights is responsibilities. There is no particular difficulty in either concept. The Commission has undertaken human rights education since its establishment and it has always emphasised everyone’s responsibility to protect and promote human rights. Its existing functions incorporate both and so the amendments are not necessary. But equally they are not problematic.

If the Government wishes to increase the Commission’s education work, then increasing the Commission’s budget would be a far more effective means of achieving that than re-ordering the list of the Commission’s statutory functions. The Commission’s budget was cut by 40% during the first term of the present Government. Its educational work has been limited by that and it has no capacity to transfer funds to education from other areas of Commission activity. Restoring the Commission’s budget to an adequate level would be the best way to increase its work for human rights education.

The Human Rights Council of Australia neither supports nor opposes amendments to highlight human rights education and everyone’s responsibility for human rights protection and promotion.

The Human Rights Council of Australia recommends that the Commission’s budget be substantially increased to enable it to enhance its work for human rights education.

Amendments affecting the Commission’s function of intervening in court proceedings are far more problematic (amendments to sections 11 and 31 of the Human Rights and Equal Opportunity Commission Act 1986, section 67 of the Disability Discrimination Act 1992, section 20 of the Racial Discrimination Act 1975 and section 48 of the Sex Discrimination Act 1984). Indeed they are quite unacceptable. They would require the Commission to obtain the consent of the Attorney General before seeking to intervene in court proceedings that raise human rights issues.

Interventions have been among the most important functions undertaken by the Commission since its establishment in 1986. Certainly the courts, right up to the High Court itself, have seen the function as important and the Commission’s contribution to proceedings as helpful and significant. Intervention is at the discretion of the court hearing the case. The Commission has rarely been denied court approval when it has sought to intervene. In many cases the courts themselves have drawn matters to the Commission’s attention with a clear indication that they would be assisted by the Commission’s participation. The court is the appropriate body to determine whether the Commission should be permitted to intervene, not the Attorney General.

The inappropriateness of the proposal is evident in the nature of the cases in which the Commission seeks to intervene. They have been predominantly cases in which the Commonwealth is a party or an intervener. If the Commonwealth were arguing a human rights position, then the Commission would not need to intervene. The Commission need intervene only where the Commonwealth’s position is contrary to human rights requirements. Of course this is precisely why the Government is now attempting to subject the intervention function to the Attorney General’s approval. The Government does not like being opposed by the Commission. However, the amendments would have the effect of requiring the Commission to seek the Attorney General’s approval for it to intervene to argue against the Commonwealth’s position. It creates a conflict of interests for the Attorney General, who is subject to Cabinet direction and is not independent. The inevitable result would be that the Attorney General would refuse consent in almost all cases.

The Commission’s intervention function is not a totally independent function under the present legislation. It cannot intervene arbitrarily or rashly, even if it were so inclined. It is subject to the control of the court. The fact that, with only one exception, courts have always approved the Commission’s intervention requests indicates that the function has been used sparingly and responsibly for the assistance of the courts and with their approval. This is as it should be. As already stated, the court is the appropriate body to determine whether the Commission should be permitted to intervene, not the Attorney General.

The Paris Principles require that national human rights institutions be independent. These amendments would compromise the Commission’s independence and so be inconsistent with the Paris Principles. Australia’s commission has been an international leader in promoting the establishment and development of independent national human rights institutions that comply with the Paris Principles. The Australian Government, through the Minister for Foreign Affairs, the Department of Foreign Affairs and Trade and the Australian Agency for International Development (AusAID), has supported that role strongly in United Nations forums and through multilateral and bilateral development assistance. Compromising the Australian Commission’s independence would not only be a travesty in itself. It would also undermine all these efforts over many years to promote the development of similar effective, independent institutions in other countries. Placing the Australian Commission outside the Paris Principles would do great damage to this important work, particularly in the Asia Pacific region.

The Government included similar provisions to these in its earlier attempt to amend the Commission’s legislation. On that occasion the Senate Committee recommended unanimously against the proposal. The Government amended the then Bill accordingly. The attempt now to return to the earlier discredited and rejected position is inexplicable. This proposal is essentially no different from the earlier one and should receive the same response.

The Human Rights Council of Australia opposes amendments that would impose a requirement of the Attorney General’s approval on Commission applications to intervene in court proceedings.

ADVISORY COMMITTEES

The Bill proposes the deletion of the provision in the Human Rights and Equal Opportunity Commission Act 1986 for the appointment of advisory committees to the Commission (section 17) and of the provision in the Racial Discrimination Act 1975 for the Community Relations Council (Part V). These provisions have been used on one occasion only since the Acts were passed, in relation to an advisory committee on ILO Convention 111 under the Human Rights and Equal Opportunity Commission Act 1986. The provisions have been essentially inoperative since the Acts were passed. In any event, express power to appoint an advisory committee is not needed.

The Human Rights Council of Australia supports the deletion of the advisory committee provisions.

RECOMMENDATIONS ON COMPLAINTS

In dealing with complaints of human rights violation or of discrimination in employment under the Human Rights and Equal Opportunity Commission Act 1986, the Commission may make recommendations when reporting to parliament on a complaint that is substantiated but unconciliated.  The recommendations may include recommendations for the payment of compensation to the complainant. The Bill proposes the removal of the power to recommend compensation because “these recommendations cannot currently be pursued in any way”. However, other kinds of recommendations, which will remain possible, also “cannot currently be pursued in any way”.

Complaints under the Act do not relate to unlawful conduct and so there are no enforceable remedies provided. All a complainant can expect, in the absence of a conciliated settlement, is a report to parliament vindicating him or her and making recommendations to address the violation. There is no reason in logic or principle for the exclusion of compensation from the range of recommendations available to the Commission in reporting on a complaint. The only justification is that complaints of human rights violations can only relate to acts and practices of the Commonwealth and so recommendations in relation to those violations will only be recommendations against the Commonwealth and the Commonwealth finds it embarrassing to receive a recommendation that it pay compensation. Certainly there can be no concern that these recommendations represent a financial drain on the Commonwealth. The Commonwealth rarely, if ever, accepts the recommendations and so they have very few financial implications for Commonwealth expenditure. The Commission should remain unfettered in its ability to make such recommendations as it considers necessary to redress the human rights violation or discrimination a complainant has experienced. In the absence of an enforceable remedy for these complaints, unlike complaints of disability, race and sex discrimination, recommendations addressed to person or organisation found to have violated human rights is the best way to achieve a just resolution of the matter.

The Human Rights Council of Australia opposes the deletion of compensation from the range of recommendations the Commission can make under the Human Rights and Equal Opportunity Commission Act 1986 in relation to human rights violations and discrimination in employment.

COMPLAINTS COMMISSIONERS

The Bill proposes the appointment of complaints commissioners (proposed new section 42A of the Act) to assist the president of the Commission to undertake her complaint responsibilities (section 19). Before amendments to the Act that commenced in 2000, individual specialist commissioners handled complaints arising in their area of specialisation under the various Acts administered by the Commission. The amendments that commenced in 2000 transferred all those functions to the president. They gave the president very wide powers of delegation but they prevented the president from delegating any of the responsibilities to the other commission members except the Human Rights Commissioner.

The appointment of complaints commissioners is unnecessary as the president already has very wide power to delegate her responsibilities. Appointment of complaints commissioners will bring more, external people into the complaint handling process who are not subject to presidential direction. Unless all complaints in a particular area of discrimination are allocated to one person it will lead to inconsistency in complaint handling. It will also require additional resources for the Commission which the Government has not indicated it will provide. A far better approach would be to permit the president to delegate complaint handling responsibilities to other members of the Commission

The Human Rights Council of Australia opposes the proposal to establish complaints commissioners to assist the president in handling complaints. Rather, the president’s present power to delegate complaint handling should be extended to include the power to delegate to other members of the Commission.

If the proposal to appoint complaint commissioners proceeds, then the Bill should be amended in two ways.

First, proposed section 42A requires that complaints commissioners be legally qualified persons. No other restriction is placed on appointees. This qualification is unnecessary and undesirable. There is no good reason why only a legally qualified person can undertake the responsibilities of complaint handling. Indeed in the past, when the specialist commissioners handled complaints, many of those commissioners were not legally qualified and yet they performed their responsibilities ably, effectively and with distinction. There is no reason why legal qualifications are necessary for complaint handling.

Second, the restriction on appointment that is necessary is omitted at present. Complaints commissioners are to be part-time appointees. This means that they will usually have other paid work, either as an employee or self employed. A public servant, at either federal or state level, should not be eligible to be a complaints commissioner while still employed in a public service or related agency. That would compromise the Commission’s independence.

If the proposal for complaints commissioners proceeds, then the Human Rights Council of Australia recommends that

• appointment not be restricted to legally qualified person and
• public servants not be eligible for appointment.

AREAS FOR IMPROVEMENT

The Commission’s legislation is not perfect. In fact it requires changes to strengthen the Commission and improve its effectiveness. The present Bill contains none of these. If the Government and the Parliament are truly committed to a more effective national human rights institution, these changes should be pursued, not those in the present Bill.

First, the independence of the Commission needs to be strengthened, not undermined. This requires changes to the method of appointment of Commission members and to the way in which the Commission’s budget is determined and approved.

Older Commissions in common law countries, that is, Australia, Canada and New Zealand, reflect the British form of executive appointment to statutory offices. Appointment is entirely the prerogative of the government of the day and so may be open to politicisation to ensure the appointment of members who will be sympathetic to the government. In establishing newer institutions, parliaments in other countries in the region have developed ways to reduce politicisation of the process and to guarantee more independence for members. In Fiji, India and Nepal, commission members are appointed by the head of state on the basis of advice not from the government but from a committee consisting of the Prime Minister, the Opposition Leader and the Chief Justice. In Indonesia and Thailand commission members are elected by the legislature on the recommendation of a selection committee that includes representatives of human rights non-government organisations.

The Human Rights Council of Australia recommends that the method of appointment of members of the Commission be changed to increase the independence of the Commission in accordance with the Paris Principles. The process should be at arm’s length from the government of the day. It should include a pluralistic selection committee with representatives of human rights non-government organisations. It could also provide a role for the parliament or a parliamentary committee in the process.

Budgetary control by the government is another means by which the independence of a national human rights institution can be restricted. A government can reward a docile institution by increasing its budget and it can punish an activist institution by cutting its budget. The Human Rights and Equal Opportunity Commission suffered budget cuts totaling 40% over the first term of the present Government. The Commission could be protected better from the system of budgetary rewards and punishments if its budget were less in the hands of the Government and more in the hands of the Parliament, for example, through a process of public inquiry and determination by a parliamentary committee.

The Human Rights Council of Australia recommends that the method of determining the annual budget of the Commission be changed to increase the independence of the Commission. The process should be at arm’s length from the government of the day. It could provide a more direct and determinative role for the parliament or a parliamentary committee in the process.

The Commission’s powers should be strengthened in two areas to enhance its effectiveness. One area relates to substantive powers and the other to process.

In relation to substantive powers, as already noted, the Commission’s legislation does not provide any enforceable remedy for violations of human rights or for discrimination in employment under the Human Rights and Equal Opportunity Commission Act 1986. Its complaint jurisdiction in relation to human rights violations is limited to acts and practices of the Commonwealth. When the legislation was passed, it was anticipated that the Commonwealth would heed and respond seriously to Commission findings of a breach of human rights and to its recommendations. This has not proven to be the experience. Complainants under the Act should be able to obtain an enforceable remedy for a human rights violation at least as effective as the remedies for disability, race and sex discrimination provided under other legislation administered by the Commission.

The Human Rights Council of Australia recommends that the Commission’s legislation be amended to provide an enforceable remedy for complaints of human rights violation and discrimination in employment under the Human Rights and Equal Opportunity Commission Act 1986.

Finally, the Commission’s powers of investigation need strengthening. The Commission has power to compel testimony of witnesses and the production of documents. It does not have explicit power to enter premises or to seize evidence. Instead it has to rely, where required, on an amalgam of powers and functions to argue that it is entitled to act. Under the present legislation, for example, the Commission has no express power that permits its members and staff to enter immigration detention centres to inspect the premises and to interview detainees. So far as the Human Rights Council of Australia is aware, the relevant department has never refused a Commission request to visit a centre but the Commission’s ability to perform its functions should not be dependent on the grace and favour of the government or a government department. Additional specific powers of entry and seizure are required to guarantee the effectiveness of Commission investigations of human rights violations.

The Human Rights Council of Australia recommends that the Commission’s legislation be amended to provide the Commission with power to enter premises and seize evidence in performing its functions in relation to human rights.

CONCLUSION

The Human Rights Council of Australia considers that Australia requires a strong, independent, effective national human rights institution. The role, functions and powers of the Human Rights and Equal Opportunity Commission need to be strengthened, not diminished. Provisions in the Australian Human Rights Commission Legislation Bill 2003 would have the effect of diminishing the Commission. The Council opposes these provisions and urges their rejection. Instead the Council recommends that the Parliament examine ways in which the Commission can be enhanced in protecting and promoting human rights in Australia.

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