Annual Report 2007-2008: Chapter 1 - The Human Rights and Equal Opportunity Commission

Chapter 1

The Human Rights and
Equal Opportunity Commission

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• 1.1 VISION
• 1.2 MISSION
• 1.3 HREOC21
• 1.4 STRUCTURE
  
  • 1.4.1 President – The Hon. John von Doussa, QC
  • 1.4.2 Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner – Mr Tom Calma
  • 1.4.3 Human Rights Commissioner and Acting Disability Discrimination Commissioner – Mr Graeme Innes, AM
  • 1.4.4 Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination – Elizabeth Broderick (from 10 September 2007)
• 1.5 LEGISLATION
  • 1.5.1 Human Rights and Equal Opportunity Commission Act
  • 1.5.2 Racial Discrimination Act
  • 1.5.3 Sex Discrimination Act
  • 1.5.4 Disability Discrimination Act
  • 1.5.5 Age Discrimination Act
• 1.6 FUNCTIONS AND POWERS
• 1.7 SPECIFIC FUNCTIONS OF THE PRESIDENT AND COMMISSIONERS
  
  • 1.7.1 President
  • 1.7.2 Aboriginal and Torres Strait Islander Social Justice Commissioner
  • 1.7.3 Sex Discrimination Commissioner
  • 1.7.4 Amicus Curiae
• 1.8 THE MINISTER
• 1.9 OUTCOME STRUCTURE

1.2 MISSION

Leading the promotion and protection of human
rights in Australia by:

• making human rights values part
  of everyday life and language;
• empowering all people to
  understand and exercise their human rights;
• working with individuals,
  community, business and government to inspire action;
• keeping government accountable to
  national and international human rights standards;
• securing an Australian charter of
  rights.

We do this by:

• listening, learning,
  communicating and educating;
• being open, expert, committed and
  impartial;
• fostering a collaborative,
  diverse, flexible, respectful and innovative workplace.

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1.3 HREOC21

On 14 and 15 February 2008, HREOC held a planning
summit at Jones Bay Wharf, Pyrmont Point in Sydney, entitled HREOC21. The 21
refers to the number of years that have passed since HREOC was established by an
act of federal Parliament in 1986.

The summit was the culmination of an intensive
consultation process, which involved discussions with HREOC staff and with
external stakeholders, such as media, community organisations, educators and
government representatives. The objective of the summit was to initiate a
HREOC-wide strategic planning process by creating a refreshed vision for
HREOC’s future and a concrete plan of action that would make the vision
happen.

* * * * * * * * * * * * * * * *

President John von Doussa addresses staff and other attendees at the HREOC21 Summit in February 2008

The HREOC21 Summit was attended by all HREOC
staff and 14 influential external participants from various stakeholder
areas.

The summit methodology used the Appreciative
Inquiry (AI) strengths-based approach to problem solving. This approach to
strategic planning has been used successfully in hundreds of small and large
organisations worldwide, including the United Nations. AI identifies the
‘positive core’ in people and organisations – their
capacities, capabilities, resources and strengths – to arrive at positive
solutions. By inquiring into success and achievements, new possibilities for
change, action and innovation are created – success is replicated and
there is energy for change. This approach can be contrasted with traditional
problem solving approaches which tend to focus on resolving problems and
conflicts.

There are three major outcomes for HREOC as a
result of the summit:

• a new vision and mission for
  HREOC
• a new strategic plan for
  HREOC
• a new 15 month full-time position
  to assist in the implementation of these outcomes.

A re-branding process was undertaken during the
remainder of the reporting period. The new corporate image and branding will be
launched during the new reporting period.

HREOC’s new vision and mission appear at
the beginning of this chapter.

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1.4 STRUCTURE

HREOC is a national independent statutory body
established under the Human Rights and Equal Opportunity Commission Act
1986. It has a President and five Commissioners. The five positions are
currently held by three persons.

1.4.1 President – The Hon. John von Doussa,
QC

The Hon. John von Doussa was appointed President
of the Human Rights and Equal Opportunity Commission (HREOC) on 1 May 2003 for a
five year term. This appointment was extended until 8 September 2008.

At the time of his appointment he was a Judge of
the Federal Court of Australia, an appointment he had held since 1988. He was
also the President of the Australia Competition Tribunal, a Presidential Member
of the Administrative Appeals Tribunal and an Additional Judge of the Supreme
Court of the Australian Capital Territory

From 1992 until shortly before his appointment he
was also a part-time Commissioner of the Australian Law Reform Commission. From
1986 to 1988 he was a Judge of the Supreme Court of South Australia.

Before his appointment as a Judge he was a Queens
Counsel practising mainly in South Australia, and had served terms as the
President of the Law Society of South Australia, and Vice-President of the Law
Council of Australia.

In 1996 he was awarded an Honorary Doctorate of
the University of South Australia in recognition of his close involvement in the
organisation and provision of practical legal training for newly qualified
graduates in law in South Australia.

Since 1997 he has been a member of the Court of
Appeal of Vanuatu. In 2003 he was appointed a non-resident member of the Supreme
Court of Fiji.

On 26 July 2004 Mr von Doussa was appointed
Chancellor of the University of Adelaide.

Mr von Doussa presently represents HREOC as a
member of the International Coordinating Committee of National Human Rights
Institutions based in Geneva, and is Deputy Chair of the Asia Pacific Forum of
National Human Rights Institutions.

Mr von Doussa was appointed Acting Sex
Discrimination Commissioner and Commissioner responsible for Age Discrimination
on 4 November 2006 – an appointment extended until 9 September 2007, when
the new Commissioner’s term commenced.

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1.4.2 Aboriginal and Torres Strait Islander Social Justice
Commissioner and Acting Race Discrimination Commissioner – Mr Tom
Calma

Mr Tom Calma was appointed as the Aboriginal and
Torres Strait Islander Social Justice Commissioner for a five-year term on 12
July 2004. He has been appointed Acting Race Discrimination Commissioner on an
annual basis since this time.

Mr Calma is an Aboriginal elder from the
Kungarakan tribal group and the Iwaidja tribal group, whose traditional lands
are south west of Darwin and on the Coburg Peninsula in Northern Territory,
respectively. He has been involved in Indigenous affairs at a local, community,
state, national and international level and worked in the public sector for over
35 years. Mr Calma has broad experience in public administration, particularly
in Indigenous education programs, and in developing employment and training
programs for Indigenous people from both a national policy and program
perspective.

He served three terms as a Director of Aboriginal
Hostels Ltd and as a Company Director for a private tourism and hospitality
venture in the Northern Territory.

Until his appointment as Commissioner, Mr Calma
managed the Community Development and Education Branch at Aboriginal and Torres
Strait Islander Services (ATSIS) where he worked with remote Indigenous
communities to implement community-based and community driven empowerment and
participation programs. In 2003, he was Senior Adviser Indigenous Affairs to the
Minister of Immigration, Multicultural and Indigenous Affairs.

From 1995-2002, he worked as a senior Australian
diplomat in India and Vietnam, representing Australia’s interests in
education and training. During his time in India, he also oversaw the management
of the Australian international education offices in Pakistan, Nepal and Sri
Lanka.

He moved to Canberra in 1992 and undertook
various assignments, including Executive Director to the Secretary and Senior
Executive of the Department of Employment, Education, Training and Youth
Affairs.

In the early 1980s, Mr Calma and Indigenous
colleagues established the Aboriginal Task Force (ATF) at the Darwin Community
College (later, the Darwin Institute of Technology), which provided second
chance education programs for Indigenous people. He became a senior lecturer and
head of the ATF for six years.

Mr Calma is a White Ribbon Ambassador for 2005-07
and National Patron of Wakakirri, the National Story Festival, which is
Australia’s largest multi arts event.

(Mr Calma was appointed as the Race
Discrimination Commissioner on 2 July 2008).

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1.4.3 Human Rights Commissioner and Acting Disability
Discrimination Commissioner – Mr Graeme Innes, AM

Lawyer, mediator and company director, Mr Graeme
Innes was appointed as Human Rights Commissioner on 15 December 2005 for a
five-year term. He has been appointed Acting Disability Discrimination
Commissioner on an annual basis since this time.

A human rights practitioner for over 25 years, Mr
Innes has worked in equal opportunity in NSW, WA, as well as nationally. He was
Deputy Disability Discrimination Commissioner with the HREOC from 1999 to
2005.

Mr Innes has been a Member of the NSW
Administrative Decisions Tribunal; the NSW Consumer, Trader and Tenancy
Tribunal; the Social Security Appeals Tribunal; and a Hearing Commissioner with
HREOC. He has been active in the disability field for 30 years. He was Chair of
the Disability Advisory Council of Australia for four-and-a-half
years.

Mr Innes was the first blind President of Royal
Blind Society of NSW, and the first Chair of Vision Australia, Australia’s
largest national blindness agency.

Mr Innes has been one of Australia’s
delegates to the World Blind Union and the President of that Union’s Asia
Pacific region. He was also a member of the Australian delegation to the UN,
which developed the Convention on the Rights of Persons with
Disabilities.

Mr Innes has been a consultant to organisations
such as Westpac, Qantas, and Sydney Water on disability issues and was a
Councillor on Ku-ring-gai local Council.

In 1995 Mr Innes was admitted as a Member of the
Order of Australia (AM) for his contribution to the development of Commonwealth
disability discrimination legislation. He was a finalist for Australian of the
Year in 2003.

(Mr Innes was appointed Disability Discrimination
Commissioner on 2 July 2008).

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1.4.4 Sex Discrimination Commissioner and Commissioner
responsible for Age Discrimination – Elizabeth Broderick (from 10
September 2007)

The Hon. John von Doussa, QC (until 9 September
2007)

Ms Elizabeth Broderick was appointed Sex
Discrimination Commissioner and Commissioner responsible for Age Discrimination
on 10 September 2007 for a five year term.

Lawyer and business woman, Ms Broderick was the
2001-02 Telstra NSW Business Woman of the Year and Australian Corporate Business
Woman of the Year.

Prior to her appointment as Sex Discrimination
Commissioner and Commissioner responsible for Age Discrimination, Ms Broderick
was a partner at one of Australia’s leading law firms, Blake Dawson, and
developed the firm’s business case for flexibility in the workplace.

Her efforts contributed to creating a workplace
where more than 20 per cent of the law firm’s workforce now uses flexible
work arrangements.

She established the first Legal Technology Group
within a law firm in Australia and is widely recognised as a leader in the
delivery of on-line legal services to educate individuals about the
law.

More recently, she has travelled the length and
breadth of Australia listening to women’s and men’s concerns about
gender equality and age discrimination. In 2008, she was part of
Australia’s delegation to the United Nations for HREOC on the status of
women.

Ms Broderick has developed mentoring programs for
teenage girls at State High Schools in Sydney and a mentoring program for female
university students.

She has a particular interest in issues related
to gender equality, women in business, work and life balance and corporate
social responsibility. She is a regular speaker at international and domestic
conferences.

Ms Broderick is married and has two young
children.

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1.5 LEGISLATION

HREOC is responsible for administering the
following Acts:

• Human Rights and Equal
  Opportunity Commission Act 1986 (The Human Rights and Equal Opportunity
  Commission Act);
• Racial Discrimination Act 1975
  (The Racial Discrimination Act);
• Sex Discrimination Act 1984
  (The Sex Discrimination Act);
• Disability Discrimination Act
  1992 (The Disability Discrimination Act); and
• Age Discrimination Act 2004
  (The Age Discrimination Act).

Functions performed under these Acts are vested
in HREOC as a collegiate body, in the President or individual members of HREOC
or in the federal Attorney-General.

Other legislation administered through HREOC
includes functions under the Native Title Act 1993, performed by the
Aboriginal and Torres Strait Islander Social Justice Commissioner. The Sex
Discrimination Commissioner has functions in relation to federal awards and
equal pay under the Workplace Relations Act 1996.

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1.5.1 Human Rights and Equal Opportunity Commission Act

The Human Rights and Equal Opportunity Commission
Act established HREOC and outlines its powers and functions. Human rights are
strictly defined, and only relate to the international instruments scheduled to,
or declared under, the Act.

They are the:

• International Covenant on
  Civil and Political Rights
• Convention on the Rights of
  the Child
• Declaration on the Rights of
  the Child
• Declaration on the Rights of
  Disabled Persons
• Declaration on the Rights of
  Mentally Retarded Persons
• Declaration on the Elimination
  of All Forms of Intolerance and of Discrimination Based on Religion or
  Belief
• Convention Concerning
  Discrimination in Respect of Employment and Occupation.

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1.5.2 Racial Discrimination Act

The Racial Discrimination Act gives effect to
Australia’s obligations under the International Convention on the
Elimination of All Forms of Racial Discrimination.

Its main aims are to:

• promote equality before the law
  for all persons, regardless of their race, colour or national or ethnic
  origin
• make discrimination on the basis
  of race, colour, descent or national or ethnic origin, unlawful
• provide protection against racial
  hatred.

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1.5.3 Sex Discrimination Act

The Sex Discrimination Act gives effect to
Australia’s obligations under the Convention on the Elimination of All
Forms of Discrimination against Women and certain aspects of the
International Labour Organisation (ILO) Convention 156.

Its main aims are to:

• promote equality between men and
  women
• eliminate discrimination on the
  basis of sex, marital status or pregnancy, and family
  responsibilities
• eliminate sexual harassment at
  work, in educational institutions, in the provision of goods and services,
  accommodation and in the delivery of Commonwealth programs.

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1.5.4 Disability Discrimination Act

The objectives of the Disability Discrimination
Act are to:

• eliminate discrimination against
  people with disabilities as far as is possible
• promote community acceptance of
  the principle that people with disabilities have the same fundamental rights as
  all members of the community
• ensure as far as practicable that
  people with disabilities have the same rights to equality before the law as
  other people in the community.

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1.5.5 Age Discrimination Act

The objectives of the Age Discrimination Act are
to:

• promote equality before the law
  for all persons regardless of their age
• eliminate discrimination against
  persons on the ground of age in many areas of public life such as employment,
  education and the provision of services or facilities
• change negative stereotypes about
  older people.

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1.6 FUNCTIONS AND POWERS

HREOC’s responsibilities fall within four
main areas:

• Human rights education and
  promotion
• Inquiring into discrimination and
  human rights complaints
• Human rights
  monitoring
• Policy development and
  legislative reform.

In order to fulfil its obligations,
HREOC:

• Fosters public discussion, and
  undertakes and coordinates research and educational programs to promote human
  rights and eliminate discrimination in relation to all its Acts.
• Investigates complaints of
  alleged unlawful discrimination pursuant to the Racial Discrimination Act, the
  Sex Discrimination Act, Disability Discrimination Act and the Age Discrimination
  Act, and attempts to resolve these matters through conciliation where
  appropriate. The President may terminate a complaint of alleged unlawful race,
  sex, age or disability discrimination if, for example, there is no reasonable
  prospect of settling the complaint by conciliation or the complaint is lacking
  in substance. If a complainant, whose complaint has been terminated, wants the
  complaint heard and determined by the Courts they must lodge an application to
  the Federal Court of Australia or the Federal Magistrates Court within 28 days
  of a Notice of Termination issued by the President.
• Investigates acts or practices
  that may be contrary to a human right or that may be discriminatory pursuant to
  the Human Rights and Equal Opportunity Commission Act. If the complaint is
  unable to be resolved through conciliation and is not discontinued for other
  reasons the President may report on the case and make particular
  recommendations. The report is tabled in federal Parliament.
• May advise on legislation
  relating to human rights and monitor its implementation; may review existing and
  proposed legislation for any inconsistency with human rights or for any
  discriminatory provision which impairs equality of opportunity or treatment in
  employment or occupation; may examine any new international instruments relevant
  to human rights and advise the federal government on their consistency with
  other international treaties or existing Australian law; and may propose laws or
  suggest actions the government may take on matters relating to human rights and
  discrimination.

In order to carry out these functions, HREOC is
empowered under all its Acts (unless otherwise specified) to:

1. Refer individual complaints to the President
   for investigation and conciliation.
2. Report to the government on any matters
   arising in the course of its functions.
3. Establish advisory committees.
4. Formulate guidelines to assist in the
   compliance by organisations and individuals of the requirements of human rights
   and anti-discrimination legislation and conventions.
5. Intervene in court proceedings involving human
   rights matters with the permission of the Court.
6. Act as amicus curiae (friend of the
   court) in alleged unlawful discrimination cases that are before the
   Courts.
7. Grant exemptions under certain conditions
   (Age, Sex and Disability Discrimination Acts).
8. Conduct inquiries into issues of major
   importance, either on its own initiative, or at the request of the
   Attorney-General.
9. Examine enactments.

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1.7 SPECIFIC FUNCTIONS OF THE PRESIDENT AND
COMMISSIONERS

In addition to the broad functions outlined
above, the President, the Aboriginal and Torres Strait Islander Social Justice
Commissioner and the Sex Discrimination Commissioner have specific
responsibilities.

1.7.1 President

The President is the Chief Executive Officer of
HREOC, responsible for its financial and administrative affairs. The President
is also responsible for the complaint handling function of HREOC.

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1.7.2 Aboriginal and Torres Strait Islander Social Justice
Commissioner

The Aboriginal and Torres Strait Islander Social
Justice Commissioner, under the Human Rights and Equal Opportunity Commission
Act, prepares an annual report on the exercise and enjoyment of human rights of
Indigenous people and undertakes social justice education and promotional
activities.

The Commissioner also performs separate reporting
functions under the Native Title Act 1993. This includes preparing an
annual report on the operation of the Act and its effect on the exercise and
enjoyment of human rights of Indigenous people. The Commissioner also reports,
when requested by the Minister, on any other matter relating to the rights of
Indigenous people under this Act.

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1.7.3 Sex Discrimination Commissioner

The Workplace Relations Act 1996 gives the
Sex Discrimination Commissioner the power to initiate and refer equal pay cases
to the Australian Industrial Relations Commission.

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1.7.4 Amicus Curiae

Section 46PV of the Human Rights and Equal
Opportunity Commission Act gives HREOC Commissioners an amicus curiae
(‘friend of the court’) function. The role of an amicus
curiae is to provide special assistance to the court in resolving issues
raised by the case and to draw attention to aspects of the case that might
otherwise have been overlooked.

Under this function, 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 may seek the permission of
the Federal Court, or Federal Magistrates Court, to assist the court as
amicus curiae in the hearing of unlawful discrimination applications.

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1.8 THE MINISTER

The Attorney-General, the Honourable Robert
McClelland MP, is the Minister responsible in Parliament for HREOC. He has a
number of powers under the Human Rights and Equal Opportunity Commission Act
1986.

The most significant are:

• to make, vary or revoke an
  arrangement with states or territories for the performance of functions relating
  to human rights or to discrimination in employment or occupation
• to declare, after consultation
  with the states, an international instrument to be one relating to human rights
  and freedoms for the purposes of the Act
• to establish an advisory
  committee (or committees) to advise HREOC in relation to the performance of its
  functions. HREOC will, at his request, report to him on Australia’s
  compliance with International Labour Organisation Convention 111 and
  advise him on national policies relating to equality of opportunity and
  treatment in employment and occupation.

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1.9 OUTCOME STRUCTURE

HREOC has one outcome:

An Australian society in which the human
rights of all are respected, protected and promoted.

There is one output for the HREOC’s
outcome:

Australians have access to independent human
rights complaint handling and public inquiries processes and benefit from human
rights education, promotion and monitoring and compliance activities.

Table 1: Resources for outcomes

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