The role of the Australian Human Rights Commission in protecting and promoting human rights in Australia

The Hon Catherine Branson QC, President, Australian Human Rights Commission

27 April 2010

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1 Introduction

I would like to begin by saying how delighted I am to be here speaking this evening about the work of the Australian Human Rights Commission. I hope also to learn more about the protection of human rights in Japan and about your proposal for a national human rights institution in Japan. This is my first time to Japan and I am thrilled to be here. I am grateful for all the work that has gone into the preparation for this session and for my visit. And I thank those who have looked after me so well since I arrived in your country.

I have been asked to speak for about 40 minutes and thought it might be useful to briefly outline what I will cover over that time.

First, I will briefly set the scene about how human rights are protected in Australia. I will then tell you a little about the structure and jurisdiction of the Australian Human Rights Commission and explain how we have achieved our status as a National Human Rights Institution in accordance with the international Paris Principles, which set out the criteria for being recognised as an independent human rights body.

I will then spend most of my time describing how we use our statutory functions to improve the enjoyment of human rights in Australia and sharing some examples which will hopefully be of some interest to you.

2 How are human rights protected in Australia?

In order to give some context to the work the Commission does, it may be helpful for you to understand how human rights are legally protected in Australia.

Australia has ratified almost all of the important international human rights treaties (the Convention on the Rights of Migrant Workers being the primary exception). However, under Australian law, ratification of an international treaty does not, of itself, incorporate that treaty into Australian law. It does, however, empower the national Parliament to make laws which bring Australian law into compliance with its international treaty obligations.

The Australian Parliament has not enacted a comprehensive human rights Act. Nor does the Australian Constitution include a Bill of Rights. Nonetheless, Australia does have a combination of case law and statute law that together reflect many of the principles embodied in the treaties which it has ratified. But in most cases without directly incorporating the term of the treaties into Australian law.

For example, the Australian Parliament has enacted laws including discrimination laws, privacy laws, child protection laws and criminal laws which reflect international human rights standards. Similarly, as Australia is a common law country, the law as developed through decisions of our courts plays an important role in protecting human rights. For example, important principles like the right to a fair trial are reflected in the common law of Australia – but these human rights protections have developed largely independently of international human rights developments such as the coming into force of the International Covenant on Civil and Political Rights.

There has been much debate, particularly in recent months, about whether Australia needs a Constitutional or statutory bill of rights. Just last week our government reiterated that it is not ready to enact such an instrument.

Thus, human rights are not comprehensively protected in Australia -  their protection is somewhat piecemeal and is to be found in various statutes, in the common law and, of course, ultimately in the desire of the Australian people to live in a community that respects human rights. It was this desire that led to the creation of the Australian Human Rights Commission in 1986.

3 How was the Australian Human Rights Commission established?

From our perspective, one of the more important laws protecting human rights in Australia is the legislation which establishes the Australian Human Rights Commission and gives us our powers, functions and responsibilities.

The Australian Human Rights Commission was established as an independent statutory authority in 1986 through legislation which is now called the Australian Human Rights Commission Act 1986 (Cth). The legislation provides for a Commission constituted by a President and five Commissioners.

These six positions are currently held by four people. I hold the position of President and Human Rights Commissioner. My colleague Graeme Innes holds the position of Disability Discrimination Commissioner and Race Discrimination Commissioner. My colleague Elizabeth Broderick holds the position of Sex Discrimination Commissioner (and also covers the area of Age Discrimination even though it is not an official position under the legislation). Mick Gooda holds the position of Aboriginal and Torres Strait Islander Social Justice Commissioner and is thus concerned with the human rights of Australia’s Indigenous Peoples.

You may be interested to know that the legislation does not prescribe how we should organise our work or who we employ. So, when we have the funding for positions, we advertise those vacancies publicly and invariably receive a large number of applications from highly qualified candidates. The Commission currently has a staff of approximately 100 people. Of those 100, approximately one third are involved in handling complaints about discrimination and human rights breaches, another third are involved in policy work and the remainder provide legal services, media services and corporate services.

4 What are the jurisdiction, responsibilities and functions of the Australian Human Rights Commission?

The Australian Human Rights Commission Act sets out our responsibilities and functions in relatively broad terms.

First, the Commission has responsibility for administering four separate discrimination acts – the Sex Discrimination Act 1984, the Race Discrimination Act 1975, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

We also have more general human rights responsibilities to protect and promote the rights and freedoms contained in certain international human rights treaties, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities and ILO Convention 111 which relates to equal opportunity in employment.

We do not have explicit jurisdiction in respect of the International Covenant on Economic and Social Rights, nor do we have explicit jurisdiction under the Convention Against Torture. While this does limit our jurisdiction in some ways, we nonetheless manage to address many of the human rights issues covered in these instruments:

• first, there is an overlap between the provisions in the International Covenant on Civil and Political Rights and the Convention Against Torture
• secondly, the Convention on the Rights of the Child allows us to address the economic, social and cultural rights relating to children and their families
• thirdly, the Aboriginal and Torres Strait Islander Commissioner has special powers to deal with the economic, social and cultural rights relating to Indigenous Peoples
• and finally, there is a provision in our legislation which requires us to consider the interdependence and indivisibility of all human rights when exercising our functions.

To execute our responsibilities in relation to these rights we have several statutory functions. For example:

• we accept and try to resolve by conciliation individual complaints about discrimination and human rights;
• we intervene in court proceedings which involve human rights issues; we examine laws relating to certain rights and often propose improvements to those laws;
• we conduct research and propose new policy and standards which would promote the enjoyment of human rights;
• we conduct national inquiries to bring special attention to issues of concern; and
• we provide education about human rights to improve awareness, understanding and respect for rights in our community.

5 How does the Commission qualify as an NHRI under the Paris Principles?

Before I go on to share some examples of the work we have done under these functions, I wanted to explain which features of our legislation and operation give us the characteristics of an ‘A’ status National Human Rights Institution under the international Paris Principles. I understand that this is an issue that you are currently exploring in Japan.

The features which define an independent National Human Rights Institution under the Paris Principles include the following:

• a clearly defined and broad-based mandate, based on universal human rights standards
• independence guaranteed by legislation
• autonomy from government; and
• sufficient resources.

I have already described to you our mandate, which meets the first of these criteria.

Our independence and autonomy from government comes from the fact that we are not required to take instructions from any politician as to what issues we decide to cover and how we address them – as long as those issues and methodologies fall within our legislative jurisdiction and functions. We manage our own budget.

Further, we are answerable to the Parliament of Australia, rather than to the government of the day. The Attorney-General is our representative in Parliament, but he has no choice about whether to table our reports in Parliament. He is bound by legislative time limits which require him to table those reports within strict time limits and he cannot change the content of what we give to him to table in Parliament.

Finally, each of the Commissioners and the President are appointed by the Head of State in Australia – the Governor General – for 5 years (which spans across our three-year election cycle). While these appointments are made on the advice of the Government, the process for selection is merit-based.

As for sufficient resources, we currently have an annual budget of almost 19 million Australian dollars provided by the government principally through the Attorney-General’s Department. While our funding has been cut at various periods of time over our history, and we are always arguing for more money to do more things, we have never been placed in a financial position that has prevented us from operating. We are confident that public pressure would not allow the government to place us in such a position.

6 What are some of the human rights issues that we focus on at the Commission?

I would now like to move on to describe a few examples of how we have used our functions to address some of the major human rights issues that we believe Australia has faced or faces.

In doing so, I hope to demonstrate both the range of issues we address and our multi-dimensional approach to those issues. I hope you will see that our success often comes from a sustained approach to a particular issue involving a combination of our functions rather from the effect of any one function working in isolation from the rest of the work of the Commission.

7 Using legal interventions to improve human rights outcomes – trafficking in women

The first function I wish to discuss is one which may be of particular interest to this audience – the Commission’s powers to intervene in court proceedings. The purpose of such interventions is to provide the court with specialist human rights knowledge in cases which involve human rights issues of general principle and public importance. Ultimately we hope that our input will assist the judiciary to make decisions which take into account human rights considerations, or support human rights outcomes, to the extent that the court’s jurisdiction allows.

The Commission has intervened in a number of cases involving a wide range of matters, including medical treatment of children, sterilisation of young women with disability and immigration cases.

One of the more recent cases in which the Commission intervened concerned trafficking in women.

In that case, Ms Wei Tang was a Melbourne brothel owner charged and convicted for ‘using’ and ‘possessing’ five Thai women as slaves. The charge of slavery was based on factors including the long hours of work they were required to do, the fact that their passports were taken from them and that they were required to live in designated premises without any real freedom to leave until they had paid off an alleged debt of $45,000 to Ms Wei Tang.

The case ended up in Australia’s highest court of appeal, the High Court of Australia.

The Commission was given leave to intervene in that court and made submissions focusing on international jurisprudence about the meaning of slavery. We sought to assist the court in interpreting and applying the definition of slavery under Australian criminal law. In particular, the Commission argued that international law recognises that the absolute prohibition on slavery has evolved from the historical concept of ‘chattel slavery’ and identified, from international jurisprudence, the indicia of contemporary forms of slavery.

In August 2008, the High Court handed down a majority decision which held that the definition of ‘slavery’ in the Criminal Code is not restricted to historical concepts of ‘chattel slavery’. Consistent with the approach advocated by the Commission, the Court focused on a range of factors to identify whether an offence of slavery had occurred.

We believe, that through our intervention in the Wei Tang case, we helped to influence the development and interpretation of Australia’s domestic legislation on slavery consistent with our international human rights obligations.

8 Using individual complaints to spur systemic outcomes

Another function in which you may be interested is our complaint handling function.

As I mentioned earlier, a large proportion of the Commission’s resources are devoted to the investigation and resolution of individual complaints. The Commission can accept complaints on three related grounds: complaints about unlawful discrimination, general human rights complaints and ILO111 complaints. The process and remedies available under each of these grounds vary slightly, but may be summarised as follows.

The Commission will investigate the circumstances of any complaint made by an individual, which falls into our jurisdiction and is not obviously without substance, and will attempt to assist the parties to reach a conciliated agreement.

If conciliation turns out to be unsuccessful, the complainant can take the matter to a court – but only if that complaint relates to sex, age, race or disability discrimination in employment, education, the provision of goods, services, accommodation, clubs and associations, access to premises, sport and Commonwealth laws and programs.

If the complaint relates to other human rights issues, then the only option after unsuccessful conciliation is for the Commission to write a report with recommendations for tabling in the Parliament.

For reasons which relate to the terms of the Australian Constitution, the Commission does not have the power to enforce decisions, or to make binding recommendations about a complaint.

While this would appear at first sight to be a major weakness in our powers, we have found that we have nevertheless been able to achieve some substantial outcomes through our complaint handling power. I will give you just a few examples.

8.1 Disability discrimination complaints can result in changes which benefit a wide group

Let me start with an example of complaints about unlawful discrimination on the grounds of disability, which constitute a large proportion of our discrimination complaints.

The outcomes of these complaints have changed the lives of individuals. For instance, after conciliation a company might agree to install screen reader software which means that a person who is blind can easily do a job that the employer might otherwise have thought was beyond that person’s capability.

In addition, disability complaints have assisted us to meet our general goal of bringing about systemic change and have also served as an impetus for developing general standards to clarify the non-discrimination provisions of laws such as our Disability Discrimination Act (DDA).

Just last month the Australian government tabled in Parliament disability standards which we worked together with others to develop and which clarify how architects, builders and developers can design and construct buildings to meet the requirements of discrimination law and ensure that buildings are accessible to people with a disability. These voluntary Premises Standards will apply to all new buildings constructed or renovated after May next year. We will shortly be working on changing our national building laws so that the principles in these Premises Standards will become binding.

8.2 The Commission’s role in managing exemptions under the discrimination laws

Another aspect of our special powers in relation to discrimination complaints relates to our power to grant temporary exemptions to parties who want to be exempt from discrimination laws and therefore protected from discrimination complaints under them.

One example of an appropriate use of this power would be to grant an exemption to allow a person or company time to make changes to comply with the requirements of anti-discrimination law. The Commission has a set of criteria against which to assess applications, which essentially require us to consider whether there is a reasonable balance between the benefits of granting the application and the impact on those who will no longer be able to make complaints.

To continue the example of the Disability Discrimination law, the Commission recently decided against granting a temporary exemption to movie broadcasters who wanted more time to increase the amount of captioning available in movie cinemas. Although the Commission had previously given exemptions to the TV industry for a similar purpose, we decided that insufficient progress had been made to justify a continuing exemption for cinemas.  

8.3 Complaints about conditions in detention can result in compensation

We have also received large numbers of complaints about the treatment of people in Australia’s immigration detention facilities. These complaints generally allege violations of the detainees’ rights under the ICCPR.

While the circumstances of every complaint vary, the Commission has, on a number of occasions, found that the length of detention or the particular treatment in immigration detention constitutes inhuman or degrading treatment or breaches the right to be treated with respect and dignity, or violates the right to be free from arbitrary detention.

Over the last five years, the Commission has had increasing success in conciliating complaints of this kind. The government has begun to respond more favourably to the Commission’s recommendations, including recommendations that an apology be made to the individuals concerned or that compensation be awarded to the complainant

Again, the recommendations we make regarding individual complaints about immigration detention are just one of the functions we use as part of our ongoing effort to bring about the end of Australia’s mandatory immigration detention laws and improve the conditions in detention. For example, we have conducted two national inquiries into Australia’s immigration detention policy over the past 12 years and we inspect immigration detention facilities annually and report publicly on what we see there.

Our sustained focus on this human rights issue had resulted in some improvements to detention laws and policy relating to children and to the conditions in detention. And we will continue to work on the issue until our laws, policy and practice cease raising human rights concerns.

9 Using national inquiries to raise and resolve major human rights issues – the Same-Sex: Same Entitlements Inquiry

I have just mentioned that we have conducted two national inquiries relating to immigration detention, but over the years we have conducted a variety of inquiries into human rights issues of national importance - including the forcible removal of Aboriginal and Torres Strait Islander children from their families and the discrimination faced by people with disability in the workplace, among other topics.

The purpose of national inquiries is to raise the profile of important human rights issues by conducting focused research and public consultation processes which result in a public report and education campaign.

Our most recent inquiry was about discrimination experienced by same-sex couples in Australia. In essence, the Inquiry was an audit of federal laws designed to identify laws which discriminated against same-sex couples and their children in areas like taxation, superannuation, health benefits, aged care, veteran’s entitlements, workers compensation, and employment entitlements.

In addition to the legal audit, the Human Rights Commissioner and staff travelled around Australia to hold public hearings and community forums to hear, first hand, about the impact of discriminatory laws on same-sex couples and their families. We then shared those stories with the general public so that the community could better understand and relate to the difficulties faced by those couples as a result of the discriminatory laws.

Let me give you just one example of how an Australian law discriminated against same-sex couples. Under the national worker’s compensation legislation, the spouse of a worker who is killed during his or her employment is entitled to certain death benefits. However, that legislation defined ‘spouse’ to include partners who were not formally married but only partners of the opposite sex. This meant that a same-sex partner was not entitled to any financial support or compensation, even though an opposite-sex partner was entitled to this support.

The Commission found there were 58 federal laws of this kind which breached the International Covenant on Civil and Political Rights and/or the International Covenant on Economic, Cultural and Social Rights and/or the Convention on the Rights of the Child and/or International Labour Organisation Convention 111.

The solution to this problem of inequality was simple from our perspective -  change the definitions of ‘spouse’ in the discriminatory laws to ensure that the legislation applied equally to same-sex partners as to opposite-sex partners.

This is exactly what we recommended in our report.

And in 2008, less than one year after the Attorney-General tabled the Commission’s report in Parliament, the Government announced that it would amend the affected legislation to remove discrimination against same-sex couples. This was the quickest positive outcome we had ever had to one of our national inquiries.

10 Cooperation with all sectors of society – SAGE and gender equality

I think it is essential that I refer to the importance of cooperation between the Australian Human Rights Commission and a broad cross section of society in increasing the impact of our work.

I have already briefly mentioned some of the ways in which the Commission cooperates with individuals, businesses and government to ensure human rights are better promoted and protected in Australia.

Another area of human rights policy in which the Commission is cooperating with a wide range of different stakeholders is the area of gender equality. In Australia, as I am sure is the case in many countries around the world, progress towards gender equality will require more than just a change in government policy. Real gender reform will only be achieved if there are shifts in workplace culture and a transformation in community attitudes.

The Sex Discrimination Commissioner has focused her work on the issues of sex discrimination in the workplace, economic security for women and the representation of women in leadership positions.

It is our view that increasing the representation of women in leadership and decision making roles in business, the community and government, is a crucial step in achieving gender equality. Women in Australia remain under-represented in leadership positions in virtually all sectors of the paid workforce.

For that reason, we have worked with a number of important players, including the Australian Stock Exchange, which recently released Corporate Governance Principles and Recommendations requiring listed companies to set targets for increasing the number of women on their Boards and at senior executive level.

We also worked for many years with industry bodies, unions and government to ensure the introduction of a government-sponsored national paid parental leave scheme in Australia. This scheme is due to start next year.

11 The Australian Human Rights Commission and the International System

Before I conclude, I would like to briefly touch on the Commission’s role as a National Human Rights Institution in the UN system for human rights.

As Australia’s human rights agency, the Australian government frequently asks us to provide input into its reports to treaty committees. In addition to that role, we regularly provide our views directly to the treaty committees. We are also involved in other UN bodies like the Commission on the Status of Women and the UN Permanent Forum on Indigenous People. And this year we will be contributing to Australia’s first review under the new Universal Periodic Review process in the United National Human Rights Council.

Our experience has been that treaty bodies and other UN agencies have put considerable weight on our views. Some treaty bodies have adopted, almost word-for-word, the recommendations that we have made.

This is a demonstration of the value an independent national human rights institution can bring to the UN system of international human rights protection. If a human rights institution is highly regarded, strong and independent, then its research and  findings may well shape the international community’s views about how a state party does or should meets its international human rights obligations. This is yet another important tool in the box of mechanisms to improve the enjoyment of human rights at the domestic level.

12 Conclusion

This evening I have spoken to you about some of the ways in which the Australian Human Rights Commission works to protect and promote human rights for those in Australia. I hope that this provides some useful background for you as you consider the structure, functions and powers that a Japanese National Human Rights Institution might have.

One thing I would urge you to keep in mind is that no single institutional function, indeed no single institution, can work alone to improve the enjoyment of human rights in any country.

Australia is a society in which life is mostly good for most people most of the time – and I suspect that the same may be said of Japan. But there are human rights concerns in Australia, as you can see from the examples I have discussed with you, and I am persuaded that we can do more to ensure that human rights are respected more consistently and more comprehensively in our country.

I firmly believe that the strong, independent and sometimes outspoken voice of the Australian Human Rights Commission is a critical aspect of human rights protection in Australia. But we do not operate in isolation. It is important that we work, as appropriate, with government agencies, with non-governmental organisations, with the education sector, indeed with all sectors of society, to increase the impact of our work.

The Commission’s vision is that human rights are to be enjoyed by everyone, everywhere, everyday. I hope that I have given you some sense of how we work to achieve that vision.

Thank you very much for listening.

I would now be pleased to take questions.