Questions on Notice 8 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, 8 May 2003
8
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 received by the Human Rights and Equal Opportunity
Commission ("HREOC") after it gave 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 following responses.
1.
Cuts to HREOC's budget
(a)
Allowing for the changes to the Privacy Commissioner, what has been the real decrease
in HREOC's budget over the life of the current Government?
The
real decrease in HREOC's budget over the life of the current government is around
$7.3 million in actual dollars. Note this figure excludes:
- the transfer out of HREOC of the Privacy Commissioner in 2000-01;
-
the impact of supplementation for wage cost indexation, parameter adjustments
and the like; and - one-off adjustments, from example when programs ceased.
HREOC's
budget was decreased on an ongoing basis by around $6 million during the three
years 1996-97 to 1998-99 as a result of government savings measures.
In
2000-2001 the budget was reduced by savings of $1,500,000 when HREOC's hearing
function transferred to the Federal Court. However HREOC estimated that the cost
of the hearing function at that time was around $628,000 per annum. This meant
that HREOC had to find some $872,000 internally to cover the cost of its legal
services function.
In
addition to the specific savings measures, HREOC's budget has been reduced by
at least 1% per annum as part of the efficiency dividend which is applied across
government agencies.
The
table below summarises the savings measures applied to HREOC during the term of
the current government.
1.
|
$ |
| 2% reduction in Running costs |
(362,000)
|
| Savings through increased efficiencies |
(86,000)
|
| Telecommunications savings |
(12,000)
|
| COPO/SPP efficiency dividend |
(28,000)
|
| Total |
(488,000)
|
2.
|
|
| Savings in running costs |
(618,000)
|
| Efficiency dividend |
(158,000)
|
| Telecommunications savings |
(16,000)
|
| Other minor variations |
(24,000)
|
| Total |
(816,000)
|
3.
|
|
| Additional Specific savings |
(4,300,000)
|
| Efficiency dividend |
(128,000)
|
| Superannuation adjustment |
(165,000)
|
| Telecommunications savings |
(5,000)
|
| Total |
(4,598,000)
|
4.
|
|
| Efficiency Dividend |
(164,000)
|
5.
|
|
| Savings for transfer of hearing function to Federal Court |
(1,500,000)
|
| Adjustment for estimated costs of the hearing function |
(628,000)
|
| Estimated impact of Hearings funding transfer on HREOC |
(872,000)
|
| Efficiency dividend |
(118,000)
|
6.
|
|
| Efficiency dividend |
(118,000)
|
7.
|
|
| Efficiency Dividend |
(117,000)
|
TOTAL
|
(7,291,000) |
(b)
How has HREOC absorbed these cuts to its budget by the current Government?
As
a consequence of the major budget cuts HREOC examined its activities and devised
a new staffing structure to enable it to meet the new budget limits. This was
a flatter structure with the abolition of all but two SES positions. Staffing
numbers were reduced by 60 positions. Furthermore, during the relevant period,
the positions of Disability Discrimination Commissioner and Race Discrimination
Commissioner were not filled when they became vacant.
The
identification of staff eligible for redundancy was undertaken in consultation
with staff and staff representatives. As HREOC needed to recoup close to $2 million
on redundancy payments in 1997-98 financial year, the new structure was scheduled
to take effect from 1 January 1998. Salaries saved assisted HREOC meet redundancy
costs.
The most
significant cuts affected the corporate and policy areas of HREOC. HREOC consulted
widely with staff and their representatives during this process. All redundancies
were voluntary.
As
a result of the reduction in staff numbers, HREOC sub-leased its excess accommodation.
HREOC has also
been assisted by developments in technology in achieving efficiencies.
Although
all areas of HREOC were cut, preference was accorded to complaint handling, HREOC's
core statutory function.
The
Public Affairs Unit was maintained intact, in recognition of the critical role
the media plays in the education and promotion of human rights.
There
was also recognition that Privacy and the Aboriginal and Torres Strait Islander
Social Justice Unit required some extra consideration, although both areas were
significantly reduced at the time.
The
policy staff of each Commissioner was substantially reduced, with all Commissioners
reprioritising their activities. HREOC's project budgets, and corporate services
areas were all substantially reduced, and HREOC's Secretariat was abolished.
The
complaints function was centralised in HREOC's Sydney office and HREOC subsequently
closed all its regional offices with additional staffing reductions. Although
HREOC was reluctant to close its regional offices, it considers that in practice
the closures have had few ramifications for service delivery. Changes put in place
as a result of the Human Rights Legislation Amendment Act No.1 1999 (Cth)
allowed HREOC to streamline its complaint procedures assisted by the amendment
that centralised complaint handling in the President.
Complaints
from across the country are commonly settled by telephone negotiation or by exchange
of letters, and a program of national visits to cities and country areas allows
for face to face contact with complainants. The Commission could not have managed
the process without a stringent examination of its processes and priorities and
the full co-operation of all of its staff.
2.
When did the Attorney-General last consult with HREOC about the changes proposed
in this legislation?
The
Attorney-General did not consult with HREOC about the changes proposed by the
Australian Human Rights Commission Legislation Bill 2003. The Commission was provided
with a cabinet-in-confidence copy of the Bill shortly before it was introduced
into the House of Representatives.
3.
Court interventions
(a)
Has the Commonwealth ever made submissions to a court opposing the intervention
of HREOC? If so, can you detail those instances?
The
Commonwealth has opposed an intervention by HREOC on one occasion. That was in
relation to HREOC's application to intervene in the Western Australian coronial
inquest into deaths of asylum seekers following the sinking of the Sumber Lestari.
[1] HREOC was granted leave to intervene in the inquest.
(b)
In how many cases has HREOC made submissions that differed materially from the
Commonwealth's on a point of human rights law or principle? If so can you summarise
these matters?
HREOC
has made submissions that differed materially from those of the Commonwealth on
a point of human rights law or principle in 16 matters in which the Commonwealth
has been a party and HREOC has intervened.
Those
matters are:
(i)
Legitimate expectation that administrative decision makers will treat the rights
of child as a primary consideration in decisions that affect children:
Minister
of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.(ii)
"One child policy" of People's Republic of China as ground for seeking
asylum:
C, LJ & Z v Minister for Immigration and Ethnic Affairs,
Unreported, O'Loughlin J, 30 March 1995 (and on appeal in Long Guan Chun, Li
Liu Ying & Long Guan Juan v Minister for Immigration, Local Government &
Ethnic Affairs (1996) 136 ALR 303).(iii)
Access to lawyers by asylum seekers in detention:
Wu Yu Fang & Ors
v Minister for Immigration & Ethnic Affairs, FedCt(NT) DG4/95 (and on
appeal in Wu Yu Fang v Minister for Immigration and Ethnic Affairs and Commonwealth
of Australia (1996) 64 FCR 245.(iv)
Relocation of custodial mother and children away from non-custodial father:
In
the matter of: B v B: Family Law Reform Act 1995 (1997) No.TV 1833 of 1996.(v) Race
power in s51(xxvi) of the Constitution:
Kartinyeri v The Commonwealth
of Australia (1997) 152 ALR 540.(vi)
Definition of native title rights:
Western Australia v Ward (2002)
191 ALR 1.(vii)
Criminal deportation of person in immigration detention:
Ming Dung Luu
v Minister for Immigration and Multicultural Affairs [2001] FCA 1136 (and
on appeal in Luu v Minister for Immigration Multicultural Affairs [2002]
FCAFC 369).(viii)
Detention of persons aboard MV Tampa:
Victorian Council for Civil Liberties
Incorporated & Vardalis v Minister for Immigration & Multicultural Affairs
& Ors [2001] FCA 1297 (on appeal in Minister for Immigration &
Multicultural Affairs & Ors v Vardalis & VGCCL [2001] FCA 1329 and
special leave application to High Court of Australia in Vardalis v Minister
for Immigration & Multicultural Affairs & Ors, M93/2001 (27 November
2001)).(ix)
Right of person with transsexual history to marry:
Attorney-General
for the Commonwealth v Kevin and Jennifer [2003] FamCA 94.(x)
Guardianship of unaccompanied minors in immigration detention:
Peter
Martizi and Simon Odhiambo v Minister for Immigration and Multicultural Affairs
[2002] FCAFC 194;(xi)
Concept of "abandonment" of native title:
Members of the Yorta
Yorta Aboriginal Community v State of Victoria & Ors (2002) 194 ALR 538;(xii) Privative
clause in Migration Act 1958:
NAAV v Minister for Immigration and Multicultural
Affairs [2002] FCAFC 228.(xiii)
Privative clause in Migration Act 1958:
S134/ 2002 v Minister for Immigration
and Multicultural Affairs (2003) 195 ALR 1.(xiv)
Power to detain under s196 of Migration Act 1958:
Minister for Immigration,
Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390;(xv)
Power to detain under s196 of Migration Act 1958:
Al Masri v Minister
for Immigration, Multicultural and Indigenous Affairs, [2003] FCAFC 70 (15
April 2003);(xvi)
Death of asylum seekers off Ashmore Reef:
Record of Investigation into
Deaths of Nurjan Husseini and Fatimeh Husseini, Coroners Court of WA, Ref
No 29/02 (13 December 2002).
(c)
When, and in what context did HREOC request the use of the by-line Human Rights
- everyone's responsibility, as mentioned in the Attorney-General's second
reading speech? If so, is there correspondence about the matter and can that be
made available to the Committee?
The
Human Rights Legislation Amendment Bill (No.2) 1999 proposed that HREOC's
name be changed to the Human Rights and Responsibilities Commission.
In
the context of that proposed name change, the President of HREOC wrote to the
Attorney-General on 7 April 2000. It is not HREOC's practice to release correspondence
between it and the Attorney-General without the express agreement of the Attorney-General.
HREOC and the Attorney-General's Department have agreed, however, that the nature
of the content of that correspondence may be passed on to the Committee. The correspondence
expressed the view that:
-
HREOC did not support the name change to the Human Rights and Responsibilities
Commission: -
research undertaken on behalf of HREOC had suggested that if a change of name
was to occur then HREOC should be renamed the Australian Human Rights Commission
although the research did not find that a change of name was desirable; - HREOC's
research revealed that the word "responsibility" implied for the general
public that some have been "irresponsible" than it does a positive concept
of mutual responsibility; -
The President suggested that HREOC's name be changed to the Australian Human Rights
Commission and that a "positioning line which describes in a succinct message
what the organisation represents" could be added such as "fairness and
equality for all Australians" or "human rights - everyone's responsibility";
and - HREOC
expressly stated that it did not propose that the positioning line be legislatively
based.
HREOC
did not receive a response from the Attorney-General to its correspondence.
4.
Abolition of specialist commissioners
(a)
What would be the impact of the legislation on the profile of the Commissioners
in the Australian community?
The
amendments proposed by the AHRC Bill abolish the positions of Aboriginal and Torres
Strait Islander Social Justice Commissioner, Disability Discrimination Commissioner,
Human Rights Commissioners, Race Discrimination Commissioner and Sex Discrimination
Commissioner.
These
specialised positions have served HREOC and the Australian community well by giving
members of the Australian community with interests in those specialised areas
a well-placed accountable representative who can vocalise and address specific
concerns and promote relevant objectives and goals for that group. Any generalist
work in the human rights area is already allowed for in the present structure
with the President having a clear generalist role under the current legislation
as does the one specialist position of Human Rights Commissioner.
The
specialist Commissioner titles are attractive to the mass media and are invaluable
in assisting HREOC promote human rights. Free access to the mass media is HREOC's
main educative tool. "Accessibility" to the media is often a matter
of "image" and specialist Commissioners have provided a clear and easily
understood "image" for the media. They have built up over a number of
years into an authoritative "brand" which is called upon many times
a week by journalists from all spheres of the media for comment and background.
This assists HREOC with its overall communication strategy which emphasises the
use of the free mass media wherever appropriate.
The
abolition of all of the specialisist positions and the creation of generalists
Human Rights Commissioners (rather than the current one generalist Human Rights
Commissioner) would deny to members of the Australian community with specific
interests and needs, an easily identifiable and accessible representative with
specific and relevant expertise. There would be confusion in the community as
it would not be clear to the community which Human Rights Commissioner dealt with
a specific area of responsibility and the ability to communicate and identify
easily with a particular Commissioner would be lost. The difficult task of allocating
certain areas of responsibility to the relevant generalist Human Rights Commissioners
would fall to the President and it would not be at all evident to the community
the basis upon which this would be done.
Furthermore,
the existence of generalist Human Rights Commissioners would impede HREOC's educative
function as the current specialised Commissioners' titles communicate effectively
and clearly to the community the wide jurisdiction of HREOC.
The
consequence of having three generalist Human Rights Commissioners is to remove
from the human rights arena, positions that have a profile based upon an area
of interest and responsibility that is immediately evident from their title. The
Human Rights Commissioners would not be perceived by the Australian community
as being accountable to achieving particular objectives or goals or having a specific
role or responsibility. This could lead the Australian community to downgrading
not only the work of HREOC but also the influence and achievements of the proposed
generalist Human Rights Commissioners.
Please
do not hesitate to contact HREOC if we can be of any further assistance in relation
to this matter.
Yours
sincerely,
Diana
Temby
Executive Director
1.
Record of Investigation into Deaths of Nurjan Husseini and Fatimeh Husseini, Coroners
Court of WA, Ref No 29/02 (13 December 2002).
Last
updated 22 May 2003.