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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

SUMMARY
VERSION

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Overview

A
strong and independent national human rights organisation is crucial to promote
and protect fundamental values of fairness, equality, tolerance and non-discrimination.

Since
its establishment in 1986, the Human Rights and Equal Opportunity Commission has
successfully worked to foster greater understanding, respect and protection of
human rights in Australia, with a particular focus on sex, race and disability
discrimination, as well as the rights of Indigenous Australians.

This
has been achieved through an effective complaint-handling process, an extensive
education program, inquiries into issues of national importance and using its
intervention and amicus curie functions to assist the courts in cases that
involve human rights principles.

The
success and vitality of the Commission is reflected in the fact that many other
nations, particularly those in the Asia Pacific region, have modelled their own
national human rights institution on Australia's.

However,
proposals contained in the Australian Human Rights Commission Legislation Bill
2003 have the potential to significantly undermine the integrity, independence
and efficiency of the Commission.

This
is not the first time that attempts have been made to restructure the Commission
and propose amendments that would restrict its independence. Similar proposals
were contained in the Human Rights Legislative Amendment Bill (No.2) 1998,
which were not supported at the time by the Senate Legal and Constitutional Legislation
Committee.

This
paper summarise the Commission's major concerns with the Australian Human Rights
Commission Legislation Bill 2003 currently being reviewed by the Senate Legal
and Constitutional Legislation Committee.

Restricting
the Commission's right to intervene in matters before the courts

Background

The
Commission is able to seek leave of the court to intervene in cases that raise
human rights or discrimination issues. The role of the intervener is to provide
specialist advice, independent from the parties to a case. This is particularly
important in the High Court where complex legal principles and policies are at
stake, especially in constitutional cases. Since it was established in 1986, the
Commission has intervened in 35 cases. These include interventions in cases involving
family law issues, child abduction, the rights of refugees and asylum seekers,
sex and marital discrimination, native title and other general human rights issues.

The
Commission has never had an application to seek leave to intervene rejected by
a court. The cost of the Commission's 18 interventions in the past three financial
years is approximately $200,000, or 0.5% of the Commission's budget in that period.

Proposed
amendment

The
Commission would only be able to seek leave to intervene in a case with the approval
of the Attorney-General. However, the Commission would not require approval from
the Attorney-General if the Commission's President is, or was, a federal judge.

Commission's
position

The
Commission opposes the amendment as it:

  • compromises the independence of the Commission by bringing the right to argue
    human rights issues before the courts under political control;
  • raises an actual or perceived conflict of interest if the Commonwealth is a party
    to a case in which the Commission seeks to intervene (of the 35 cases in which
    the Commission has intervened, the Commonwealth has been a party in 18 cases and
    made submissions contrary to the Commission in 16 cases);
  • pre-empts the authority of the courts to determine whether it will grant the Commission
    leave to intervene in a case;
  • effectively creates 'two classes' of Presidents.

Abolishing
the position of specialist Commissioners

Background

Under
its establishing legislation, the Commission is comprised of:

  • the President;
  • 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.

Since
December 1997, the Human Rights Commissioner has also been the Acting Disability
Discrimination Commissioner. Since September 1999, the Aboriginal and Torres Strait
Islander Social Justice Commissioner has been the Acting Race Discrimination Commissioner.

Proposed
amendment

The
structure of the Commission would be altered to consist of:

  • a President; and
  • three Human Rights Commissioners.

Commission's
position

The
Commission opposes the amendment as it:

  • will reduce the ability of the Commission to do its job effectively by undermining
    the strong relationships established by specialist Commissioners with their constituent
    groups;
  • does
    not require a Commissioner be responsible for Indigenous issues or reflect the
    present requirement that the Social Justice Commissioner be an Indigenous person,
    or have significant experience in the life of Indigenous communities;
  • could result in significant public confusion and resentment, leaving disadvantaged
    groups without the advocacy of a specialist Commissioner;
  • is unnecessary to achieve the flexibility and cross-portfolio work that the Commonwealth
    proposes will be achieved by having generalist Commissioners.

Limiting
the Commission's inquiry powers under the HREOC Act

Background

Under
the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA), the
Commission has the power to inquire into acts or practices of the Commonwealth
that may breach a person's human rights, as well as inquire into acts or practices
of any employer in relation to discrimination in employment. Following an inquiry,
the Commission may report its findings to the Attorney-General and can include
a recommendation of financial compensation.

Proposed
amendment

The
Commission would be unable to recommend financial compensation when inquiring
into complaints under the HREOCA.

Commission's
position

The
Commission opposes the amendment as it:

  • removes a legitimate form of redress that the Commission can recommend;
  • denigrates and trivialises the pain and suffering, or financial loss, that a complainant
    might have experienced;
  • reduces the likelihood that a respondent will seek to settle a complaint.

Removal
of the President's delegation powers under the HREOCA

Proposed
amendment

The
Bill would remove the President's ability to delegate inquiry powers under the
HREOCA to the Human Rights Commissioner.

Commission's
position

The
Commission opposes the amendment as it fails to allow the President to make full
use of the expertise brought to the Commission by the Human Rights Commissioner.

Further, the
Commission argues that the President should have the power to delegate inquiry
powers under the HREOCA to any member of the Commission to ensure the most appropriate
person undertakes the inquiry.

Appointment
of 'Complaints Commissioners'

Proposed
amendment

The
Attorney-General would have the power to appoint part-time 'Complaints Commissioners'
to assist with inquiries into breaches of human rights and complaints of discrimination.

Commission's
position

The
Commission opposes the amendment as:

  • the Commission's current complaint-handling system is working in an efficient
    and timely manner, with no backlog of complaints;
  • the President already has the ability to delegate her powers to Commission staff,
    as well as to a person outside the Commission.

Prioritising
the Commission's legislative functions

Proposed
amendment

The
Commission's 'sets of functions' would be re-ordered to make education and dissemination
of information on human rights the Commission's primary focus.

Commission's
position

The
Commission does not oppose the amendment. However, the amendment is unnecessary
as significant resources are already directed towards public education and information
distribution.

Recent
education initiatives undertaken by the Commission include:

  • Human rights education modules and resources for teachers and students, including
    the Youth Challenge program;
  • Face the Facts: Some Questions and Answers on Immigration, Refugees and Indigenous
    Affairs     - more than 100,000 copies distributed to schools and community groups;
  • Pregnancy
    Guidelines     for employers to develop 'pregnancy-friendly' workplaces, arising
    from the National Pregnancy and Work Inquiry;
  • Sexual Harassment: A Code of Practice - thousands of copies distributed
    to workplaces across Australian, with an updated version to be released shortly;
  • Report of Ten Years Achievement of the Disability Discrimination Act;
  • Report of the National Inquiry into the Separation of Aboriginal and Torres
    Strait Islander Children from their families     - distribution of the Community
    Guide and Video Report, as well development of curriculum-linked education material
    for schools.

Renaming
the Commission, with a legislated 'by-line'

Proposed
amendment

The
Commission will be renamed the Australian Human Rights Commission. It is further
proposed that the by-line, 'Human rights - everyone's responsibility', be incorporated
into the Commission's logo.

Commission's
position

The
Commission does not oppose its renaming to the Australian Human Rights Commission.
However, the Commission is of the view that there is no need to have a by-line,
especially not one that it is legislatively required to use.

Last
updated 29 April 2003.