Human Rights Day Oration 2021: Emeritus Professor Rosalind Croucher

Human Rights Day Oration 2021

Emeritus Professor Rosalind Croucher AM

President, Australian Human Rights Commission

Friday, December 10, 2021

Introduction

On behalf of the Australian Human Rights Commission, welcome to Human Rights Day for 2021!

I am speaking today from the traditional lands of the Gadigal people of the Eora nation and pay my respects to Elders past, present and emerging—and to the traditional custodians of the lands from wherever you may joining me today.

As I reflect on the past two years, on Human Rights Day, it is clear that the pandemic has brought a renewed national focus on the importance of centralising human rights during times of crisis.

It is a very good thing to have this focus on how we can provide the best protection to all members of our society, how we give the best support to the most vulnerable, and how we can promote the overall wellbeing of everything and everyone in Australia.

Governments have prioritised public health and, in the main, done well, and largely sought to justify their actions, but they haven’t always got everything right. Here or overseas. And we are by no means at the end point of the pandemic.

Our challenge in the ‘after’, is to ensure that human rights remain central to government decision making on an ongoing basis.

And that is where the Commission’s Free and Equal project comes in.

When I first announced that the Commission would conduct a National Conversation on Human Rights, my goal was to develop a roadmap that would guide government action and community partnerships to fully realise human rights and advance equality.

I wanted to be ambitious in setting targets to address inequality—to reimagine our system of protections, so that we can provide everyone with the opportunity to be the best that they can be.

It was aspirational, and forward-looking, based on the question of what kind of Australia do we want for our children and our children’s children? I anticipated that we would develop a reform agenda—a roadmap—in three parts.

Today, following an extensive consultation process in 2020 and 2021, we are releasing the first part of that roadmap—the Commission’s position paper on federal discrimination law reform.

We provide 38 recommendations covering every aspect of our federal discrimination law system, to ensure: that it offers robust protection against discrimination, provides better support for businesses and organisations to do the right thing, and is simpler to use.

Why is reform needed? Put simply, Australia’s discrimination laws are falling short.

They are outdated—and they are difficult to use. And some of these laws have remained substantially untouched since they were introduced over 30 and 40 years ago.

These laws do not respond to the challenges of modern life. They are often unsuccessful as a means of remedying discrimination, let alone preventing it.

There are a number of key problems.

First, addressing discrimination is heavily reliant on individuals to bring complaints, rather than on more systemic approaches to building cultures of prevention—within businesses, services and the institutions of public life.

The focus should shift to preventing discrimination, rather than reacting to it, after the fact.

Secondly, the regulatory framework is out of date and needs strengthening. There should be a full range of regulatory responses available to target discrimination of different kinds, at different levels of severity, and to engender understanding and certainty about legal obligations.

Federal discrimination laws do not provide adequate support to the business sector to take proactive efforts to address potential discrimination.

Thirdly, the discrimination system, while offering a range of options, can be difficult to navigate, and legal remedies difficult to access, with the result that many meritorious claims may not be pursued in the courts.

Individuals need the tools to obtain access to justice.

Fourthly, with, for now, four sets of federal discrimination laws, alongside state and territory instruments—and overlapping regimes such as Fair Work—the mix of discrimination laws is complex and sometimes inconsistent, which leads to difficulties in applying the law.

There are also gaps in protection, so some people are not protected at all by discrimination laws, or are unable to obtain access to a remedy for discriminatory conduct.

What, then are the solutions?

During the consultation process, I crystallised key areas for reform into four thematic categories: the four pillars of our law reform agenda. These are: building a preventative culture; modernising the regulatory framework; enhancing access to justice; and improving the practical operation of laws. I will speak to each, in turn.

Pillar One—Building a preventative culture

Many people that experience discrimination are unable, or unwilling, to bring a complaint, because of the stress and trauma associated with the experience.

Our most recent survey about sexual harassment, for example, showed that fewer than one in five people who said they experienced workplace sexual harassment in the last five years had made a formal report or complaint (17%), or even sought support or advice (18%).

Positive duties are an emerging feature of discrimination and workplace laws in Australia—and overseas—reflecting a shift to a preventative focus in dealing with discrimination and avoiding harm.

These are not new ideas. For example, Work Health and Safety laws already include a positive duty for employers.

In the Commission’s 2020 Respect@Work report into workplace sexual harassment, led by Sex Discrimination Commissioner, Kate Jenkins, we recommended the introduction of a positive duty to take measures to eliminate sex discrimination, sexual harassment and victimisation.

The Government will shortly commence consultations on this recommendation as part of its response to Respect@Work. However, sex discrimination in the workplace is only one aspect of federal discrimination law.

We advocate that a positive duty be included in all discrimination laws, requiring organisations to take reasonable and proportionate measures (in accordance with their size and resourcing) to eliminate unlawful discrimination.

The benefit of positive duties is that they are focused on instituting change—rather than on fault. A positive duty would support businesses to take steps to embed non-discrimination measures into their operations. It would also benefit businesses by helping to prevent individual claims of discrimination from being brought against them.

The Business Council of Australia, for example, commended the approach in Work Health and Safety laws for their focus on encouraging prevention as part of the obligations imposed by those provisions. This focus—on prevention—builds a different mindset into all aspects of a business to ensure that these obligations are met.

There are also strong economic incentives for proactive measures—Deloitte, for example, estimated that sexual harassment was costing the Australian economy $3.8 billion annually. That’s a staggering figure.

Overall, a positive duty would re-balance the discrimination law system—to focus on prevention, rather than redress—and is therefore a key measure towards improving the effectiveness of discrimination law in Australia.

Respect@Work recognised this. In this paper we have taken it further. It is pillar one of our reforms.

Pillar Two—Modernising the regulatory framework

The alternative dispute resolution processes used by the Commission to handle discrimination complaints can be an empowering process for complainants—and can be very effective at achieving both individual and systemic outcomes.

However, the compliance framework that operates alongside this is extremely limited.

Individual complainants, and the ADR process, should not bear the bulk of responsibility for ensuring compliance with discrimination laws.

The Commission’s regulatory powers have remained effectively untouched since our permanent establishment in 1986. By contrast, since the Abbott Government introduced the Regulatory Powers (Standard Provisions) Act in 2014, most other regulatory agencies, across the Commonwealth of Australia, have had their frameworks reviewed and modernised, with many tools now at their disposal to address different kinds of issues. This has also resulted in standardising some of these tools across jurisdictions, leading to greater business certainty—and simplicity.

Alas, federal discrimination law has not been reviewed in light of these major reforms. Modernising the regulatory framework for the Australian Human Rights Commission is a neglected part of that agenda.

We put forward reforms that reflect the concept of ‘responsive regulation’, based on Professor John Braithwaite’s regulatory pyramid.

Using this theoretical conceptualisation, a range of different approaches are required to achieve compliance with the law. This includes capacity building where there is an inability to comply, and more coercive powers, towards the top of the pyramid, where there is an unwillingness to comply. These ‘higher order’ powers provide leverage—the leverage that having such powers can bring in enforcing obligations, even when not exercised. The availability of the ‘stick’ can be a very effective ‘carrot’ to shift behaviour towards a compliance mindset.

Currently, the Commission has large gaps in its regulatory framework, particularly at the top end of the pyramid.

We are recommending a range of measures to fill some of those gaps, with a particular focus on co-regulation.

These include a new power to conduct inquiries that we initiate ourselves—into systemic discrimination. We are already trusted to conduct major systemic inquiries on behalf of government and business, for example, into sexual harassment in the workplace (Respect@Work); into Gymnastics in Australia (Change the Routine); and more recently, into Parliamentary workplaces (Set the Standard); and Basketball Australia engaged the Commission to undertake a Racial Equality Review of the sport at a national level.

As the body that receives, on average, 15,000 inquiries a year and 2,000 complaints, (numbers which, I should emphasise, have been blown out of the water these past two years), the Commission has particular insights into areas where systemic inquiries would be beneficial.

Our proposed framework is designed to help businesses and enable certainty and support—through co-regulatory measures. These include the power to conduct voluntary reviews of policies or programs, in terms of compliance with federal discrimination laws, and to enable the Commission to issue ‘special measure’ certifications, where an action is proposed that confers a benefit on a group of people to reduce their experience of inequality—such as targeted recruitment of people with disability.

In short, the current regulatory scheme for federal discrimination law is hopelessly out of date. And there’s a range of ways that the Commission could offer greater support to the business sector, and that would likely result in a reduction in discrimination—and reduce exposure to complaints.

But this requires change to the legislative framework—with greater capacity for the Commission to work in a proactive, preventative way.

Pillar Three—Enhancing access to justice

Our conciliation processes do work well. We generally record positive outcomes, and high rates of satisfaction—from all parties involved in discrimination law matters.

But not all complaints are resolved through conciliation.

So, what then? Now, the only ‘next’ is to proceed to the federal courts. And entering that arena can be extremely resource- and time-intensive.

This discourages individuals from pursuing discrimination claims in court—many of them, meritorious. Fewer than 3% of discrimination matters finalised by the Commission ever proceed to court.

To improve access to justice outcomes for individuals, we propose:

• reforms to how costs are calculated in the courts
• reforms to address difficult evidentiary issues for claimants, without shifting the overall onus of proof, and
• reforms to enable representative actions taken on behalf of a group of claimants.

An additional consideration is that there is no intermediate process that bridges the gap between voluntary conciliation at the Commission, and litigation through the courts. There used to be—but it was removed.

Until 2000, the Commission had an adjudicative function to make determinations in discrimination matters that could not be resolved by conciliation or negotiation. But this function was removed following the High Court decision in Brandy v HREOC in 1995 ((1995) 183 CLR 245). The amendment was to address problems raised by a process that had been introduced of registering determinations of the Commission as if they were judgements of the Federal Court.

For the Constitutional lawyers out there, this was a Chapter III issue. But the solution went much further than addressing that question. We lost all the adjudicative hearing powers we had.

In our Position Paper, we refer to this as the ‘Brandy myth’. The powers that were removed from the Commission went beyond what was necessary.

Indeed, since the Brandy decision, other federal regulatory agencies have been granted—or retained—similar kinds of powers, such as the Fair Work Commission and Fair Work Ombudsman. New powers have also been developed in accordance with the Regulatory Powers Act. For example, the Office of the Information Commissioner, which itself used to be part of the Human Rights Commission, has seen its regulatory framework expand over time.

By comparison, our powers have gone backwards—to the detriment of all.

Moreover, the lack of ‘middle layer’ adjudication for complainants further limits the accessibility and availability of remedial options. For this reason, we recommend that the Government give serious consideration to reintroducing an intermediate adjudicative process to bridge the gap between voluntary conciliation and federal court litigation, whether through the Commission, or through a tribunal-like body or new arbitral process.

It has been a gap of over twenty years which has not improved access to justice.

Pillar Four—Improving the practical operation of laws

There are many different recommendations within our package of reforms about ‘improving the practical operation of laws’.

A number of them are technical in nature, designed to improve clarity and consistency across the various discrimination laws and in their practical applications, and to reduce the level of complexity across the system overall. Those of you who know and work in this area would cheer, here.

Importantly, we also recommend measures to close the existing gaps in discrimination law coverage, to ensure that everyone is protected from discrimination.

We support the introduction of a new federal ground of unlawful discrimination based on freedom of thought, conscience and religion, to be appropriately balanced alongside existing discrimination grounds in accordance with Australia’s international obligations. We are currently developing a submission on the Religious Discrimination Bill which will made public in the coming fortnight.

We also recommend a ground to prevent discrimination based on a person’s irrelevant criminal record. This is one of the grounds of discrimination in our Act relating to an ILO Convention. As the ground is not, currently, ‘unlawful discrimination’, there is no pathway to judicial consideration, or enforceable remedies. And yet, we receive a significant number of complaints on this ground each year and it is an area that has a disproportionate impact on some groups.

Other proposed changes would close gaps to make the law more inclusive of volunteers and interns in the workplace, and those with family responsibilities. These modest changes would reflect the realities of the modern world of work.

In conclusion—

I present to you this roadmap for reform. Overall, we make 38 recommendations for discrimination law reform across these four thematic areas. The need for reform of federal discrimination law is urgent, and consideration should be given to this as a matter of priority.

We must address the overly complex nature of these laws and refocus the system so that it generates business confidence—to take measures of prevention as the major focus; while also ensuring that the remedial aspects of the system are more effective—and fairer.

The Discrimination Law Position Paper is the first of three major outputs for the Free & Equal project. Next, we will finalise an updated model for a federal human rights act, alongside key related reforms to promote a positive human rights culture in Australia. We will then complete a final report of the project.

Discrimination law reform is a critical piece of the puzzle—but it is not enough.

National human rights legislation will enable Australia to finally have a complete, functional and effective system of rights protections. That, too, is long overdue.

The pandemic has shown us that putting people at the centre, and having debates about people’s rights, is possible. It has also shown us that no single piece of law reform is too hard or too much to undertake.

It is time we applied that thinking to federal discrimination laws.

Laws that were fit for the times in the 1970s and 1980s now need to evolve to meet the needs of the 21st century.

I commend to you the Australian Human Rights Commission’s reform agenda for federal discrimination law and encourage you to join us in advocating for change to ensure a fairer society for all Australians.

I want to acknowledge the contribution of individuals and organisations in promoting and protecting human rights and freedoms.

Therefore, it is my great pleasure to congratulate the winners of our 2021 Human Rights Awards in our three categories. In past years, when it was possible to hold an in-person event, with hundreds of guests, these announcement would have been preceded by cameo video clips, breathless anticipation and thunderous applause. I expect you to make up for this from wherever you are:

First, the Community Human Rights Champion

The Community Human Rights Champion for 2021 is PlateitForward, the community-driven organisation providing meals, training and employment to vulnerable communities in Sydney. PlateitForward recognises that job creation and education are necessary for these communities to thrive and to access the fundamental human rights of connection, employment and community.

Secondly, the Young People’s Medal

For her exceptional advocacy for better consent education, and raising the issue of sexual assault within schools to the national spotlight, the Young People’s Medal winner is Chanel Contos.

Thirdly, the ‘top gong’, the Human Rights Medal

For her outstanding and ongoing contribution to enhancing the rights of Indigenous Australians through research and advocacy, the Human Rights Medal winner for 2021is Professor Larissa Behrendt AO. All our 2021 Human Rights Award winners and finalists deserve to be applauded for their tireless devotion to making Australia a fairer place for all.

Thank you, and again, happy Human Rights Day!