Questions on Notice 13 May 2003
Legal
Questions on Notice arising from evidence given to the Senate Legal and Constitutional Legislation Committee's Reference on the Australian Human Rights Commission Legislation Bill 2003
- HREOC's response, 13 May 2003
13 May 2003
Ms Louise Gell
Acting Secretary
Senate Legal and Constitutional Committee
Parliament House
CANBERRA ACT 2600
Dear Ms Gell,
Re: Questions on Notice arising from evidence given to the Senate Legal and Constitutional Legislation Committee's Reference on the Australian Human Rights Commission Legislation Bill 2003
I refer to the Questions on Notice taken by the Human Rights and Equal Opportunity Commission ("HREOC") during its evidence before the Senate Legal and Constitutional Legislation Committee's Reference on the Australian Human Rights Commission Legislation Bill 2003 ("AHRC Bill") on 29 April 2003 and provide the responses below.
I have also taken the liberty of adding some further information at the end of this letter concerning:
- The submission made to the Committee by the Ethnic Communities Council of NSW (John Ley asked us to comment on a couple of issues raised therein); and
- An issue mentioned by the Attorney-General in the media as to the possible proliferation of specialist Commissioner positions.
QUESTIONS ON NOTICE
1. What new powers would the Commission like to have?
(Senator Bolkus, Hansard, p.7)
HREOC submits that the promotion and protection of human rights in Australia would be strengthened by the following changes to the law it implements:
- Make discrimination complaints, as defined in section 3 of Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOCA") and its Regulations (which include age, sexual preference, religion/religious belief, criminal record, trade union activity, political opinion) and outlined in section 32(1) of the HREOC Act unlawful discrimination, in all areas of public life with enforceable legal rights like those afforded under the Racial Discrimination Act 1975 (Cth) ("RDA"), Sex Discrimination Act 1984 (Cth) ("SDA"), Disability Discrimination Act 1992 (Cth) ("DDA") and State anti-discrimination laws.
- Extend the coverage of human rights breaches to include State acts and practices and provide enforceable legal rights for complaints that allege breaches of human rights as defined and outlined under sections 3; 11(1)(f) and 20(1) of HREOCA.
- Strengthen the monitoring role of the Aboriginal and Torres Strait Islander Social Justice Commissioner by legislatively providing for a Government response to the Social Justice and Native Title Reports within a particular timeframe of the tabling of the Reports.
2. How many complaints raise more than one claim of discrimination?
(Senator Greig, Hansard, p.8)
The President is responsible for the complaint handling function of HREOC. The President inquires into and endeavours, where appropriate, to resolve matters through conciliation. The President has, since the commencement of the Human Rights Legislation Amendment Act No. 1 1999, been responsible for inquiring into all complaints lodged with HREOC including those that allege unlawful discrimination on grounds pursuant to the RDA, SDA and DDA and complaints alleging either a breach of human rights by the Commonwealth or discrimination in employment under HREOCA.
The President is well placed and experienced to manage complaints that raise multiple grounds of discrimination or human rights breaches. In the reporting year 2001-02, HREOC received 1,271 complaints which can be broken down as follows:
- Thirty six percent of these complaints were lodged under the DDA;
- Thirty one percent were lodged under the SDA;
- Fifteen percent were lodged under the RDA; and
- Eighteen percent were lodged under HREOCA (49% of which raised grounds concerning not unlawful discrimination in employment - ie, age, religion, sexual preference, criminal record and trade union activity; 44% alleging a breach of human rights by the Commonwealth and 7% were not human rights as defined by HREOCA).
Of the 1,271 complaints received, only 65 (5.1%) raised double or multiple grounds of alleged discrimination.
The multiple grounds raised in the complaints appear in the table at Appendix A.
3. What portion of the Commission's budget is presently spent on education and how, if at all, would the reprioritisation impact upon that expenditure?
(Senator Ludwig, Hansard, p.9)
HREOC's budget is utilised in respect of all of the areas contained in HREOC's Corporate Plan provided as per section 46AA of HREOCA to the Attorney-General (see Appendix B - HREOC's Corporate Plan). Those areas can be broadly categorised as being complaint handling and the promotion of human rights.
In the 2002-03 budget, HREOC's Departmental outcome appropriation was $11.137 million. Since the passage of the Human Rights Legislation Amendment Act No. 1 1999 (Cth) which removed the function of complaint handling from the Commissioners and centralised it in the President, it is estimated that 74% ($8.019 million) of HREOC's budget is spent on the promotion of human rights (including school education and publications) and 26% of the budget ($3.118 million) is spent on complaint handling. This includes a pro rata allocation of corporate support costs. The budget of the Public Affairs section which manages HREOC's more traditional education programs for the current financial year is $775,000.
The very nature of human rights means that areas and projects within HREOC's jurisdiction have to be constantly reprioritised so as to react to the ever changing challenges and demands in the human rights area. If a certain area is one of particular relevance and need then the appropriate resources will be put by HREOC into educating the public about those issues.
It follows that it is not the reordering of functions by the AHRC Bill that will determine how HREOC utilises its budget because HREOC must still balance all its functions. Rather the changing issues and needs within Australian society decide what priority is given to particular expenditure. As can be seen by the above figures, however, education is certainly HREOC's primary expenditure item as would be expected from a function that is at the core of all of HREOC's other functions.
4. How does the Commission deal with issues of discrimination for which there is not a specific Commissioner?
(Senator Nettle, Hansard, p.12)
HREOC has had no difficulty dealing with issues for which there is not a specific Commissioner.
Many of HREOC's legislative functions are the functions of HREOC as a body corporate and are performed by HREOC as a whole thereby complementing the advocacy roles of the specialist Commissioners. Furthermore, the President and Human Rights Commissioner have a generalist role permitting them to consider a wide range of issues. In any case, the specialist Commissioner roles are very broad. "Social justice for Aboriginal and Torres Strait Islander people" include those who are children, women or have disabilities. "Women" include, for example, refugee women and "people with disabilities" include those of either gender and from all walks of life. The work of the Disability Discrimination Commissioner on Transport Standards, for instance, benefits all men, women and children with a disability in their every day lives. An outline of HREOC's work on children's rights (p. 4), age discrimination (p.7), sexual preference and related discrimination (p.8), refugees (p.8) and religious discrimination (p.12) may serve to explain how such issues are addressed within HREOC's current structure. The outline below is not an exhaustive list and does not include various press releases, press conferences, opinion pieces and conference papers which are part of the day to day work of HREOC
A. CHILDREN'S RIGHTS
Since its establishment HREOC has given great emphasis to issues relating to children.
(i) Public inquiries and reports
HREOC's public inquiries and reports into children's rights include:
- National inquiry into homeless children (Our Homeless Children, 1988). Chaired by the Human Rights Commissioner.
- National inquiry into the human rights of people with mental illness resulting in the report Human Rights & Mental Illness (1993) examined the rights of children with mental illness (Chapter 20) and also the rights of the children of people with mental illness (Chapter 16). Chaired by the Human Rights Commissioner.
- National inquiry into the separation of Aboriginal and Torres Strait Islander children from their families resulting in the report Bringing them home (1997). Part 6 (Chapters 20-26) of the report extensively evaluated contemporary laws and practices resulting in the disproportionate removal of Indigenous children from their families and made 13 detailed recommendations for a national response to this contemporary issue. Co-chaired by the HREOC President and the Aboriginal and Torres Strait Islander Social Justice Commissioner.
- National inquiry into children in the legal system conducted jointly with the Australian Law Reform Commission resulting in the report Seen and heard: priority for children in the legal system (1997). This Inquiry was the most comprehensive examination of children and the legal system ever undertaken in Australia.
- National inquiry into age discrimination resulting in the report Age Matters (2000). Chapter 3 dealt with 'Young people at work' and other sections covered income support for young people and other discrimination affecting them. Undertaken by the Human Rights Commissioner.
- National inquiry into rural and remote education resulting in several publications including Recommendations (2000) made recommendations for ensuring Australian provision of school education meets the minimum standards required by the Convention on the Rights of the Child. Chaired by the Human Rights Commissioner.
- National inquiry into workplace pregnancy discrimination resulting in the report Pregnant and Productive, It's a right not a privilege to work while pregnant (2002) which made recommendations on breastfeeding and paid maternity leave. Undertaken by the Sex Discrimination Commissioner.
- National Inquiry into Children in Immigration Detention (commenced 2001, report due later in 2003). Chaired by the Human Rights Commissioner.
(ii) Research and publications
Research and publications on children's rights include:
- Research on the sterilisation of girls and young women with disabilities; resulting in the report The Sterilisation of Girls and Young Women in Australia: a legal, medical and social context (1997).
- Evaluation of responses to the report Bringing them home in the Aboriginal and Torres Strait Islander Social Justice Commissioner's Social Justice Report 1998.
- The Social Justice Report 1999 focused on Indigenous children and young people.
- Human Rights Brief No. 1 "The Best Interests of the Child" (May 1999).
- Human Rights Brief No. 2 "Sentencing Juvenile Offenders" (June 1999).
- 'Action Exchange' on the National Children's and Youth Legal Service 'Lawstuff' website: a web page for young people about their right to participate http://www.lawstuff.org.au/)
- Not Round Here: Affirming Diversity, Challenging Homophobia a training manual for service-providers working with young gay, lesbian and bisexual people in rural Australia (2000).
- Research report reviewing progress since 1997, The Sterilisation of Girls and Young Women in Australia: issues and progress (2001).
- Human Rights Brief No. 5 "Best practice principles for the diversion of juvenile offenders" (September 2001).
- A time to value: proposal for a national paid maternity leave scheme, an interim paper by the Sex Discrimination Commissioner (2002).
(iii) Interventions
HREOC has intervened in the following cases raising children's rights issues:
- Re Michael: John Briton, Acting Public Advocate (Victoria) v GP & KP and HREOC (1994) FLC 92-486 - consent to surgical treatment by children.
- Re a Teenager (1988) 94 FLR 181 - sterilisation of a young woman with a disability.
- Re Marion No.2 (1994) FLC 92-448 - sterilisation of a young woman with a disability.
- P v P; re Lessli (1995) FLC 92-615 - sterilisation of a young woman with a disability.
- Re Katie (1996) FLC 92-659 - sterilisation of a young woman with a disability.
- Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 - sterilisation of a young woman with a disability.
- ZP v PS (1994) 68 ALJR 554 - child abduction.
- In the matter: of B and B: Family Law Reform Act 1995 (1997) No.TV 1833 - inter-State relocation of children with custodial parent.
- Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - the extent to which administrative decision-makers must take into account the Convention on the Rights of the Child.
(iv) Formal consultation programs with young people and their advocates
The Human Rights Commissioner played a key role in the organisation of Australia's First National Summit for Children, Parliament House, Canberra, 1998.
The Social Justice Commissioner conducted a National Indigenous Youth Forum in August 1999.
Four youth-specific consultations were convened during the Race Discrimination Commissioner's civil society consultations in preparation for the World Conference Against Racism (2001).
The Human Rights Commissioner conducted national consultations in preparation for the 2002 UN General Assembly Special Session on Children and participated in that Special Session.
(v) Advice to government
HREOC provided a submission to the inquiry by the Senate Legal and Constitutional Legislation Committee into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999.
Commissioner Ozdowski was appointed to the Attorney-General's Consultative Group on Children's Privacy to advise on whether additional measures are needed to ensure the protection of children's privacy since the extension of the Privacy Act to the private sector in December 2001.
HREOC also provided advice to the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) DDA Standards Project developing a standard for accessible education.
(vi) International activities
Human Rights Commissioner Burdekin was an adviser to the Australian delegation at the drafting sessions for the UN Convention on the Rights of the Child.
Commissioners have contributed to the development of optional protocols to the Convention on the Rights of the Child on sexual exploitation of children and children in armed conflict.
(vii) Other children's rights projects
Establishment of Outlink: rural lesbian, gay and bisexual youth network (1999) which is now independent of HREOC (outlink.trump.net.au/).
C. AGE DISCRIMINATION
(i) Public inquiries and reports
In 1999 HREOC was given a reference by the Attorney-General to investigate the implications for older Australians and Australians with disabilities of new technologies in electronic commerce and the provision of government and other services, and outline their specific needs in accessing services which utilise these technologies. The inquiry was chaired by the President and the final report, Access to electronic commerce and new service and information technologies for older Australians and people with a disability, was submitted to the Attorney in March 2000.
National inquiry into age discrimination resulting in the report Age Matters (2000). Undertaken by the Human Rights Commissioner.
(ii) Complaints and reports to Parliament
Complaints of age discrimination to HREOC under HREOCA that have resulted in a report to the Attorney-General being tabled in Parliament include:
- HRC Report No. 1 - Compulsory age retirement (1996)
- HRC Report No. 2 - Redundancy arrangements and age discrimination (1997)
- HRC Report No. 4 - Age discrimination in trade union membership (1997)
- HRC Report No. 8 - Age discrimination in the Australian Defence Force (2000)
- HRC Report No. 11 - Discrimination on the ground of age (2000)
- HRC Report No. 14 - Report of an inquiry into a complaint by Mr Andrew Hamilton of age discrimination in the Australian Defence Force (2002)
(iii) Advice to government
HREOC provided a detailed response to the Commonwealth Government's Information Paper containing its proposals for new Commonwealth age discrimination legislation (February 2003).
(iv) Other age discrimination projects
HREOC co-convenes the Ecommerce forum with the Australian Bankers Association and assisted the Association in the development of voluntary Industry Standards to improve the accessibility of electronic banking for older people and those with a disability.
D. SEXUAL PREFERENCE AND RELATED DISCRIMINATION
(i) Interventions
HREOC has intervened in the following cases that raise issues of sexual preference and related discrimination:
- Croome & Toonen v State of Tasmania (1997) 71 ALR 397 - inconsistency between State and Federal legislation in relation to the criminalisation of homosexuality.
- Re McBain: Ex parte Australian Catholic Bishops Conference [2002] HCA 16 (18 April 2002) - access by unmarried women including lesbians to IVF treatment.
- Attorney-General for the Commonwealth v Kevin & Jennifer & HREOC [2003] FamCA 94 (21 February 2003) - the right of people with a transsexual history to marry.
(ii) Complaints and reports to Parliament
Complaints to HREOC of discrimination on the basis of sexual preference under HREOCA that have resulted in a report to the Attorney-General being tabled in Parliament include:
- HRC Report No. 6 - Discrimination on the ground of sexual preference (1998).
- HRC Report No. 7 - Superannuation entitlements of same-sex couples (1999).
(iii) Advice to government
HREOC provided a submission Human rights for Australia's gays and lesbians (1997) to the Senate Legal and Constitutional Committee inquiry into Sexuality Discrimination. It reviewed the areas in which discrimination against gay men and lesbians is prevalent including employment, superannuation and immigration.
(iv) Other projects
Other projects include:
- Not Round Here: Affirming Diversity, Challenging Homophobia a training manual for service-providers working with young gay, lesbian and bisexual people in rural Australia (2000).
- Establishment of Outlink: rural lesbian, gay and bisexual youth network (1999) which is now independent of HREOC (outlink.trump.net.au/).
E. REFUGEES
HREOC does not have direct jurisdiction with respect to the Refugees Convention. However, the Refugees Convention is part of HREOC's children's rights jurisdiction by virtue of article 22 of the Convention on the Rights of the Child and civil and political rights as set out in both that Convention and the International Covenant on Civil and Political Rights are applicable to asylum seekers within Australia and, indeed, to all non-citizens. Promotion and monitoring of the enjoyment of these rights falls principally to the Human Rights Commissioner. HREOC has undertaken the following projects relevant to the rights of asylum seekers and other administrative detainees.
(i) Public inquiries and reports
HREOC's public inquiries and reports on the issue of refugees include:
- National inquiry undertaken by the Human Rights Commissioner into immigration detention resulting in the report Those who've come across the seas: detention of unauthorised arrivals (1998).
- National inquiry chaired by the Human Rights Commissioner into children in immigration detention (due to report later in 2003).
(ii) Research and publications
HREOC's research and publications on refugees include Face the Facts: some questions and answers about Immigration, Refugees and Indigenous Affairs (first edition 1997; second edition 2001; third edition forthcoming 2003).
HREOC's Immigration Detention Guidelines (2000) draw on relevant international minimum standards detailing what is required for humane detention consistent with respect for human dignity as required by the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.
There are regular reports on reviews of immigration detention by the Human Rights Commissioner including: 1998-99 review of Port Hedland, Perth, Villawood and Maribyrnong IDCs; report of the July 2000 visit to Curtin IRPC; A Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner 2001 (tabled October 2002).
HREOC also published research on temporary protection visas and the Racial Discrimination Act 1975 (Cth) (2002) for public comment: www.humanrights.gov.au/racial_discrimination/Erace/tpvs/index.html
(iii) Interventions
HREOC has intervened in the following matters that raise issues related to refugees and asylum seekers:
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (4 February 2003); NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (15 August 2002) - section 474 ('the privative clause') of the Migration Act 1958 (Cth).
- Victorian Council for Civil Liberties Incorporated & Vardalis v Minister for Immigration & Multicultural Affairs & Ors [2001] FCA 1297 (11 September 2001); Minister for Immigration & Multicultural Affairs & Ors v Vardalis & VGCCL [2001] FCA 1329 (17 September 2001); Vardalis v Minister for Immigration & Multicultural Affairs & Ors - M93/2001 (27 November 2001) (special leave application to High Court of Australia) - human rights of asylum seekers aboard the MV Tampa.
- Odhiambo v Minister for Immigration & Multicultural Affairs; Martizi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 (20 June 2002) - guardianship of unaccompanied children.
- Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390 (9 December 2002); Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 (14 March 2003) - continued detention pursuant to section 196 of the Migration Act 1958 (Cth).
- Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136 17 August 2001); Luu v Minister for Immigration Multicultural Affairs [2002] FCAFC 369 (27 November 2002) - continued detention after serving a criminal sentence and pending deportation.
- Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 - detainees' access to legal representatives.
- C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported, O'Loughlin J, 30 March 1995 - refugee status as a result of the one child policy of the People's Republic of China.
- Long Guan Chun &Ors v Minister for Immigration, Local Government and Ethic Affairs & Ors (1996) 65 FCR 164; (1996) 136 ALR 303 - Protection visas under the Migration Act 1958 (Cth).
- 'Ashmore Reef Inquest', Record of Investigation into Deaths of Nurjan Husseini and Fatimeh Husseini, Coroner's Court of WA, Ref No 29/02 (13 December 2002) - deaths by drowning of asylum seekers aboard the Sumber Lestari.
(iv) Complaints and reports to Parliament
Reports by HREOC to the Attorney-General that have been tabled in Parliament and arise out of complaints under HREOCA alleging human rights breaches in relation to refugees and asylum seekers include:
- HRC Report No. 10 - Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights in an Immigration Detention Centre (2000).
- HRC Report No. 12 - Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights in an immigration detention centre (2000).
- HRC Report No. 15 - Report of an inquiry into a complaint by Ms Elizabeth Ching concerning the cancellation of her visa on arrival in Australia and subsequent mandatory detention (2002).
- HRC Report No. 16 - Report of an inquiry into a complaint by Mr Hocine Kaci of acts or practices inconsistent with or contrary to human rights arising from immigration detention (2002).
- HRC Report No. 17 - Report of an inquiry into a complaint by the Asylum Seekers Centre concerning changes to the Asylum Seekers Assistance Scheme (2002).
- HRC Report No. 18 - Report of an inquiry into a complaint by Mr Duc Anh Ha of acts or practices inconsistent with or contrary to human rights arising from immigration detention (2002).
- HRC Report No. 21 - Report of an inquiry into a complaint by six asylum seekers concerning their transfer from immigration detention centres to State prisons and their detention in those prisons (2002).
- HRC Report No. 22 - Report of an inquiry into a complaint by Mr XY concerning his continuing detention despite having completed his criminal sentence (2002).
- HRC Report No. 23 - Report of an inquiry into a complaint by Mr Hassan Ghomwari concerning his immigration detention and the adequacy of the medical treatment he received while detained (2002).
- HRC Report No. 24 - Report of an inquiry into complaints by five asylum seekers concerning their detention in the separation and management block at the Port Hedland Immigration Reception and Processing Centre (2002).
- HRC Report No. 25 - Report of an inquiry into a complaint by Mr Mohammed Badraie on behalf of his son Shayan regarding acts or practices of the Commonwealth of Australia (the Department of Immigration, Multicultural and Indigenous Affairs) (2002).
(v) Advice to government
Advice to Government on the issue of refugees include:
- Submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Migration Legislation Amendment Bill (No. 4) 1997 & Migration Legislation Amendment Bill (No. 5) 1997 (1997).
- Submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Migration Legislation Amendment (Judicial Review) Bill 1998.
- Submission to the Senate Legal and Constitutional References Committee inquiry into the operation of Australia's refugee and humanitarian programs (1999).
- Submission to the Senate Legal and Constitutional References Committee inquiry into the special benefit provisions relating to the newly arrived residents waiting period (1998).
- Submission to the Joint Standing Committee on Migration inquiry into the Deportation of Non-Citizen Criminals (1998).
- Submission to the Joint Standing Committee on Migration Review of Migration Regulation 4.31B (1999).
- Submission to the Joint Standing Committee on Migration Review of Migration Legislation Amendment Bill (No. 2) 2000 (2000).
- Human Rights and International Law implications of Migration Bills (September 2001): a briefing paper outlining the human rights and international law implications of the following Bills then before the Senate: Border Protection (Validation and Enforcement Powers) Bill 2001,Migration Amendment (Excision from Migration Zone) Bill 2001 and Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001.
F. RELIGIOUS DISCRIMINATION
In addition to a jurisdiction to investigate employment-related complaints of discrimination on the ground of religion, HREOC also has responsibility more broadly for complaints against the Commonwealth that religious freedom has been violated (by virtue of article 18 of the ICCPR and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief - a relevant international instrument subject to a HREOCA section 47 declaration). Further, HREOC is responsible for promoting awareness and monitoring enjoyment of these rights.
(i) Public inquiries and reports
The Human Rights Commissioner on behalf of HREOC conducted a national inquiry into freedom of religion and belief resulting in the report Article 18: Freedom of Religion and Belief (1998) recommending a Religious Freedom Act be enacted among other recommendations.
(ii) Research and other publications
Research and publication in this area include:
- Human Rights Brief No. 3 "Freedom of Religion and Belief" (October 1999).
- The Human Rights and Equal Opportunity Commission Act 1986 (Cth): its application to religious freedom and the right to non-discrimination in employment, an information paper (2001).
- Erace forum on Islam, Islamophobia and the Racial Discrimination Act 1975 (Cth (2003): https://humanrights.gov.au/our-work/race-discrimination
(iii) Formal consultation program on religious freedom
The Acting Race Discrimination Commissioner is conducting throughout 2003 'Isma - Listen: National consultations on eliminating prejudice against
Arab and Muslim Australians' .
5. How is the effectiveness of the Commission's education function evaluated?
(Senator Payne, Hansard, p.13)
A. Curriculum linked study units on human rights and anti-discrimination issues for teachers and students
(i) Human Rights Human Values and Youth Challenge
A very successful human rights school education program comprising two modules, Human Rights Human Values and Youth Challenge, was developed by the Commission and delivered by the Commission in conjunction with state equal opportunity commissions between 1998 and 2000.
The materials for the program were sent to schools in advance of the conduct of the workshops.
An independent evaluation in the Studies magazine that was sent to all schools prior to their participation in the Youth Challenge workshops showed that the materials were used or would be used by more than 500,000 students. The assessment by the students judged the articles on human rights and anti-discrimination to be 23% excellent, 51% very good and 24% good. Evaluations by the students who attended the Youth Challenge day showed they had a substantially increased awareness of human rights and discrimination issues. An average of 98% of participants and 90% of teachers reported that they found the Youth Challenge materials and the workshop day as either excellent or very good.
In 2001 the Commission decided to redesign the Youth Challenge teaching materials which included the Human Rights Human Values materials and publish the first online human rights education program for teachers of secondary students by way of human rights education modules for teachers. The materials were developed to provide teachers with a range of teaching strategies and materials which are all curriculum linked.
The Commission adopted a direct marketing approach by the use of a mailing list to 3000 self-subscribed teachers and educators Our major means of evaluation is a very direct one subscribers may delete their names at any time In fact some 500 more educators have joined the mailing list since 2001.
The Commission sends a monthly update to these educators providing them with a range of human rights education resources and other helpful materials. We ask teachers to provide feedback on the teaching materials and we receive regular feedback via our web feedback facility, and use this in the development of further teaching materials
(ii) Monitoring Statistics on usage
The Commission closely monitors its online statistics to assess relevancy and use of education materials.
Further evidence of the success of the promotional activity can be seen in the following statistics which show a very high incidence of people accessing the Commission's education materials.
Page views for the Commission's on-line education materials are:
Youth Challenge - 112 915 (Dec 2001 - April 2003)
Dec 2001 - Jun 2002: 56 791
1 Jul - 30 Sept 02: 20 173
1 Oct - 31 Dec 02: 13 651
1 Jan - 30 April 22 300Information for Students - 103 513 (Jul 2001 - April 2003)
Jul 2001 - Jun 2002: 52 708
1 Jul - 30 Sept 02: 21 255
1 Oct - 31 Dec 02: 13 976
1 Jan - 30 April 03: 15 574Information for Teachers - 118 681 (May 2002 - April 2003)
15 May - 30 June 02: 23 747
1 Jul - 30 Sept 02: 37 316
1 Oct - 31 Dec 02: 24 507
1 Jan - 30 April 03: 32 111
The Commission also has education material on its website for tertiary level students called Human Rights Explained. The following statistics show a consistently high usage of this part of the website:
Human Rights Explained - 96 552 (Jul 2001 - April 2003)
Dec 2001 - Jun 2002: 49 008
1 Jul - 30 Sept 02: 19 950
1 Oct - 31 Dec 02: 13 477
1 Jan - 30 April 03: 14 117
(iii) Immediate evaluation
An evaluation and feedback form is also provided online which asks teachers to let the Commission know how the materials are being used and to suggest ways of improving the education materials. The Commission receives regular and positive feedback about the materials and has taken some suggestions on board as to the development of further materials. For example, a hard copy of a teachers' resource, Teaching Human Rights and Responsibilities in the Classroom, which updates the online education material contained in Youth Challenge will be distributed by June 2003 to all secondary schools. A major education module based on the Bringing Them Home Report will be also launched about this time. Each one will invite direct feedback from users.
(iv) Recognition from outside Educational organisations
The success of the Commission's education program was underscored when Youth Challenge was short listed for The Australian's '2002 Awards for Excellence in Educational Publications'. EdNa online which is national online education resource regularly uses information from the Commission's education programs. Other professional educational associations also regularly publish information about HREOC's educational resources, including the Australian Education Union (through its journal) and the Australian Literacy Educator's Association.
B. Website
The Commission's website was established in 1998. Since that time it has become the organisation's primary source of information dissemination. The Commission has developed a very successful on-line presence, with page views of the Commission's site increasing by over 40% in 2001-02 to 3,205,693 page views, or approximately 33 million "hits". Statistical information on major sections of the HREOC site for the 2001 - 2002 financial year are included below.
The Commission's email based electronic mailing list service provides for regular communications to many groups, including community, government lawyers and the media. There are currently more than 14,000 subscribers across 11 topic-based lists.
There is a facility for direct communication from web users via the webpage
feedback facility. The Commission receives an average of 30 messages a day via this facility.
ADDITIONAL ISSUES
1. Response to submission by the Ethnic Communities Council of NSW
The submission of the Ethnic Communities Council of NSW ("ECC") raised a number of issues in relation to HREOC's conciliation function under HREOCA that HREOC seeks to clarify.
(a) ECC submission
The ECC submitted in relation to HREOC's 'conciliation function' that present procedures with the requirement for compulsory conciliation result in lengthy delays and often reduce the effectiveness of the remedies, particularly those in vilification proceedings.
(b) HREOC's response
HREOC does not agree that there are lengthy delays in the handling of complaints. HREOC does not convene compulsory conciliation conferences although it has the statutory authority to do so. HREOC is of the view that the voluntary nature of conciliation increases the likelihood of the resolution of complaints. If complaints are unsuitable for conciliation or unable to be conciliated they are terminated by the President so that the complainant can pursue the matter through the courts.
HREOC's Charter of Service outlines HREOC's commitment to an effective and efficient complaint handling service. Further, a publicly committed key performance indicator states that 75% of complaints are to be finalised within 12 months of receipt of a complaint. In the year 2001-02, 88% of complaints were finalised within this timeframe.
In regards to 'vilification' matters in particular, a total of 50 complaints were lodged under the Racial Hatred provisions of the RDA in the 2001-02 reporting year. Thirty (60%) of these complaints were allocated to an officer for action within one month of receipt of the complaint. Eighty eight percent of the complaints had been allocated for action within two months of receipt.
Forty eight of the complaints received in 2001-02 reporting year have been finalised within the following timeframes from receipt of complaint:
| Less than 3 months |
(12) 25%
|
Cumulative
|
| 3 - 6 months |
(16) 33%
|
58%
|
| 6 - 9 months |
(6 ) 13%
|
71%
|
| 9 -12 months |
(10) 21%
|
92%
|
| Greater than 12 months |
(4) 8%
|
100%
|
HREOC acknowledges that complaints made under the RDA have a lesser chance of resolution through conciliation compared to those under the SDA and DDA. The reasons for this are varied but include the difficulty complainants have in linking their race to the less favourable treatment alleged and the associated limited case precedent in this area.
The outcomes for the finalised matters were as follows:
| Withdrawal |
(8) 17%
|
| Conciliated |
(4) 8%
|
| Admin close |
(5) 10%
|
| Terminated |
(31) 65%
|
The majority of racial hatred complaints concern disputes with neighbours and media reporting.
Of those matters terminated in the 2001-02 reporting year the following reason was given:
| No reasonable prospect of conciliation |
(8) 17%
|
| Lacking in substance |
(12) 25%
|
| Better alternate remedy |
(2) 4%
|
| Greater 12 months old |
(1) 2%
|
(c) ECC submission
The ECC also submits that in the area of vilification by committed racists, the conciliation procedure is often useless, demeaning and counter-productive and submits that conciliation not be a 'condition precedent' for the institution of proceedings in the Federal Court and that compulsory conference should be ordered by the Court.
(d) HREOC response
HREOC acknowledges that not all complaints are conducive to conciliation for a variety of reasons. There is no requirement in HREOCA for conciliation to have been attempted before a matter can proceed to the courts. A complainant may proceed to the courts if the President has terminated a complaint for any of the nine statutory reasons outlined in section 46PH (1) of HREOCA which includes that there is no reasonable prospect of the matter being settled by conciliation. (Refer to table above).
(e) ECC submission
The ECC submits that the conciliation functions of HREOC should be transferred to the Federal Court to be conducted by the Registrar of the Court.
(f) HREOC response
HREOC is of the view it is appropriate that the conciliation function remain with it given its lengthy experience. The process of conciliation is a well established alternate dispute resolution model with an underlying objective to avoid unnecessary formal legal proceedings and costs. Should a complaint be terminated by the President and the complainant proceeds to the Courts the parties are given an opportunity to resolve the matter that is before the Court.
2. Attorney-General's comments in media
Since HREOC gave its evidence to the Committee, the Attorney-General has made comments in the media that in the event that the restructuring of HREOC proposed by the AHRC Bill does not occur, there will be demands to increase the number of specialist Commissioners so as to deal with the wide range of issues that fall within HREOC's jurisdiction, such as children, refugees and the aged.
HREOC does not and has not proposed the creation of a new office to deal with every issue raised by its jurisdiction.
In two reports, the strengthening of HREOC's existing jurisdiction on age discrimination (Age Matters: a report on age discrimination, May 2000, recommendation 14) and religious discrimination (Article 18: Freedom of religion and belief, July 1998, recommendations R4.1 and R5.4) has been recommended. In neither case did HREOC recommend the establishment of a Commissioner with specific responsibility for the expanded jurisdiction.
Discrimination on the ground of age and religion are already provided for in HREOCA but only in the employment field. HREOC's responsibility for promoting awareness of and compliance with these and other employment-related discrimination grounds (under ILO 111) including sexual preference and trade union activity currently falls principally to the Human Rights Commissioner. The President deals with complaints of employment-related discrimination under ILO 111.
Greater protection for children's rights was recommended in a joint report with the Australian Law Reform Commission (Seen and heard: priority for children in the legal process, September 1997). The report did not recommend the establishment of an office of Children's Commissioner within HREOC. Rather it proposed that an Office for Children should be established within the Department of Prime Minister and Cabinet. HREOC's responsibility for promoting awareness of and compliance with children's rights as set out in the Convention on the Rights of the Child (subject of a 13 January 1993 declaration as a relevant international instrument under HREOCA section 47) currently falls principally to the Human Rights Commissioner. The President deals with complaints of human rights violations, including violations of children's rights, by the Commonwealth.
In furtherance of HREOC's existing statutory functions with respect to children's rights and freedom from age, sexual preference and religious discrimination, the Human Rights Commissioner and the Commission as a whole have undertaken a large body of work, without the need for a specialist commissioner. The activities listed in response to Question on Notice 4 above as well as many other issues as diverse as prisoners' rights and the governance of Norfolk Island illustrate how a wide range of matters can be successfully managed with HREOC's current structure.
HREOC has been a member of the Attorney-General's Consultative Group of the proposed age discrimination legislation and has suggested ways in which age discrimination can be dealt with within HREOC's existing structure.
Please do not hesitate to contact me if you require any further information in relation to this matter.
Yours sincerely,
Diana Temby
Executive Director
Last updated 22 May 2003.