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Submission to the Senate Legal and Constitutional Legislation Committee

Legal

SUBMISSION OF THE HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION

TO
THE

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

Opening
Statement by Prof Alice Tay

President, HREOC

(delivered
by Dr William Jonas on behalf of Prof Tay at the Public Hearing held in Sydney
on 29 April 2003)

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The
Commission appreciates the opportunity to speak about its concerns regarding the
Australian Human Rights Commission Legislation Bill 2003.

A
similar but not identical Bill was put before the Federal Parliament in April
1998, a week after the commencement of my Presidency. The Commission opposed many
of that Bill's provisions and continues to oppose those provisions that exist
in the current Bill as well as new ones.

Perhaps
the timing of this 2003 Bill is coincidental, as 2003 marks the end of my term
as President. If passed, the Bill will hand to the next President an inferior
set of responsibilities, a less cohesive management structure and less of a mandate
to help protect the human rights of Australians.

The
foremost of the Commission's concerns and the one which has the greatest potential
to undermine fundamental human rights in Australia is the restrictions the Bill
seeks to impose on the Commission's intervention powers.

As
you will be aware the Commission can only intervene in cases that raise human
rights or discrimination issues with the permission of the Court. It is a power
used wisely, judiciously and sparingly. Since the Commission was established in
1986 it has been granted permission to intervene in 35 court cases. It has never
had an application to intervene rejected by the Court. .

The
right to seek leave to intervene is not a right taken lightly or used recklessly.
Decisions are made by the Commission after careful deliberation.

Interventions
are used to ensure human rights arguments that might not otherwise find voice
in court cases are able to be argued and for the Commission to assist judges by
elaborating on points of international and domestic human rights' law. As intervenor,
the Commission provides specialist advice and experience and is independent of
the parties to the case.

Human
rights protection is a broad umbrella. The court cases in which the Commission
seeks to involve itself vary greatly in the rights they are seeking to protect.
Sometimes, they affect the human rights of a relatively small number of people,
but usually the repercussions are far wider.

It
is the role of an institution such as ours to weigh carefully whether our involvement
is ultimately in the public interest. Section 10A of the Act makes it the duty
of the Commission to perform its functions "….efficiently and with the
greatest possible benefit to the people of Australia."

We
do not seek to advance the cause of one special person or one community alone.
Every human rights issue affects the general community.

Yet
it is also the role of the Commission to stand alongside those who are weak and
vulnerable, whose rights are more likely to be neglected and trampled upon.

The
Committee may be familiar with some of the high profile and even controversial
cases involving the Commission. It may not be aware that the Commission has also
intervened in more specific cases that relate to:

  • Access rights of non-custodial parents
  • Children's rights to give consent to medical treatment
  • Freedom of political speech
  • Guardianship of unaccompanied child refugees
  • Interpretation
    of the definition of sexual harassment under the Sex Discrimination Act

I
need not remind the committee that the Commission also intervened in the case
of the MV Tampa and the IVF case on the rights of single women to access reproductive
technology.

The
Commission has spent $200,000 (or 0 .5 % of its budget) on 18 interventions over
the past three financial years, averaging $11,000 for each case. Early preparatory
work is done in-house by instructing solicitors and senior counsel have worked
either pro bono or on reduced rates.

This
Bill will require the Commission to seek the Attorney-General's permission to
intervene in court cases - cases in which the Attorney himself may be acting as
a party.

In
deciding whether to grant the Commission approval to intervene, the Attorney-General
may - but is not required to - consider:

  • whether or not the Commonwealth is an intervenor,
  • the impact on the human rights of people not involved in the case,
  • the
    impact on the administration of the Commission; and
  • whether
    it is in the "public interest" to intervene.

The
Attorney-General becomes the arbiter of the public interest, while holding certain
values on behalf of the Government. As "gatekeeper" and a potential
party, the Attorney-General is clearly in a position of conflict of interest.
His power to grant the right to intervene is not circumscribed, except where the
President is a former judge, in which case explicit Ministerial approval is not
required.

The
Commission believes this amendment:

  • Threatens the Commission's independence;
  • Can create a perceived or real conflict of interest for the first law officer
    of the Commonwealth;
  • Pre-empts
    the authority and right of the courts to determine who appears before them;
  • creates two classes of President.

The
Commission believes that it is sufficiently well placed to decide if there are
broader implications for the human rights of people not involved in the case and
whether or not it is in the public interest for it to seek leave of the Court
to intervene; for the unfettered independent functioning of the judicial system
it should be for the Court to decide whether or not to grant that leave.

It
is certainly not appropriate for one party to a case to decide if another party
is entitled to join. Surely, that is a matter for our learned judges. The arguments
of the Commission and Government often differ greatly and the judge is in the
best position to decide which arguments are to be put before the court.

In
fact, in 16 of 18 cases in which both the Commission and the Commonwealth have
been parties, the Commonwealth's arguments were contrary to the Commission's.

The
Commission has detailed guidelines for interventions. The case must involve significant
issues of human rights or discrimination that are not peripheral to proceedings.
The Commission will intervene if no other party is making the same arguments or
if those arguments are unlikely to be adequately or fully advanced.

The
Commission also has serious reservations about the proposal to abolish the positions
of specialist Commissioners and replace them with three human rights Commissioners.
Specialist Commissioners with specialist expertise have so far been successful
in tackling serious human rights issues in Australia and are respected as officers
with extensive knowledge and experience in socially complex issues. Changes can
only bring confusion over roles and leave disadvantaged groups without an identified
advocate.

The
Commission is happy to elaborate also on any of the arguments in its submission
on the remainder of the Bill.

I
think it is appropriate to place some of the Commission's achievements on the
public record, in particular its education work.

Education
about human rights is at the core of all the Commission's work. It may take the
form of structured school education programs (Youth Challenge and online education
materials for teachers) or a wide range of publications about anti-discrimination
laws, but education about human rights and discrimination is also a major component
of the public work carried out by Commissioners, of National Inquiries, complaint
handling, major reports and other public awareness programs.

Sometimes
the process of carrying out a major Inquiry or preparing a significant report
raises people's awareness or understanding of issues of human rights. The Bringing
them home report was a watershed in drawing public attention to the removal
of Indigenous children from their families.

Some
of the major issues tackled by the Commission in recent years include workplace
sexual harassment, pregnancy discrimination and maternity leave; disability rights
in areas such as access to transport, captioning, access to electronic commerce
for older Australians and people with a disability; race discrimination; Indigenous
social justice issues such as mandatory sentencing, community capacity-building
and native title; and human rights issues such as children in detention, education
for rural and remote communities and age discrimination.

The
Australian Human Rights and Equal Opportunity Commission has developed a reputation
as a leading national human rights institution earning accolades on the world
stage for its strength, independence and structure.

The
federal Government funded Asia Pacific Forum, a group of national human rights
institutions in the region, was hosted by HREOC for its first few years. It is
now a vital linchpin for the sharing of human rights knowledge and expertise throughout
the region.

The
Australian system has also been lauded in Europe and a delegation of British politicians
who visited recently was eager to examine the Australian model for use in the
UK. In a letter to the Commission, the delegation emphasised the fact that their
report details our structure and management practices in very positive terms.

Cherie
Blair, human rights lawyer and wife of the British Prime Minister, had this to
say in a recent speech in Perth. "HREOC operates in this country to raise
the profile of human rights in a way that, prior to the Human Rights Act, simply
did not occur in Britain,' she said.

'By
virtue of the HREOC, you are therefore already ahead of the game in this respect.'

The
Federal Government often raises the work of the Commission in international fora.
Despite its professed desire to see the Commission alter its priorities to give
greater emphasis to human rights education, it often singles out the Commission's
current education work and praises both its domestic and international effect.

The
human rights of Australians will not be better served by limiting the ability
of the national human rights body to function independently. Australians will
not be better protected because the Commission has been forced by law to add a
by-line to its name.

We
urge the Committee to reject the proposed amendments and allow the Commission
to get on with its job - of promoting and protecting the fundamental values of
fairness, equality, tolerance and non-discrimination in the Australian community.

Last
updated 29 April 2003.