National Institutions

Fewer teeth for Australia’s HREOC?

On 27 March 2003, the Australian Government introduced the Australian Human Rights Legislation Bill 2003 (hereafter the Bill) into the Senate which proposes to amend the legislation under which the Human Rights and Equal Opportunity Commission (HREOC) performs its functions. The provisions of the Bill have been referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 29 May 2003.

The HREOC is an independent national statutory body, established in 1986 by an Act of Parliament which investigates discrimination on the grounds of race, colour or ethnic origin, racial vilification, sex, sexual harassment, marital status, pregnancy or disability. The HREOC plays a central role in contributing to the maintenance and improvement of a tolerant, equitable and democratic society through its public awareness and other educational programs aimed at the community, government and business sectors. These programs provide information and strategies to promote the enjoyment of human rights in Australia. The HREOC strongly objects to the Bill which it believes will have a detrimental impact upon its ability to carry out this mandate.

First, HREOC's key point of contention is that the Bill would significantly undermine its independence in the exercise of its intervention powers as it requires the Commission to obtain the Attorney-General's consent before exercising its power to seek leave to intervene in court proceedings. This would apply unless the President of the HREOC was a federal judge immediately prior to appointment, in which case the Attorney General must only be notified and except in cases relating to the Federal Discrimination Act where the Commission is allowed to act as amicus curiae without seeking approval.

To date the intervention powers of the HREOC have permitted it, with the leave of the court, to present written and oral arguments in legal proceedings involving human rights and discrimination issues. The Commission has used the function sparingly, seeking to intervene only where it considered a case raised a significant human rights or anti-discrimination issue that the parties would not present to the Court adequately, or at all.

In total the HREOC has used these powers in approximately 35 cases before Australian courts and tribunals and has never been refused leave to intervene. In a number of these intervention cases the Commonwealth has been a party to the litigation, for example in the recent Full Family Court case regarding the rights of transgender people to marry. The HREOC objects to the amendment on the grounds that, in such cases, it is inappropriate that a party to the litigation should also have a "gatekeeper function" in relation to potential interveners. It usurps the authority of the Court to determine whether it should grant leave to an intervener and create problems of conflict of interest by preventing the Commission approaching the Court directly. It may deny it the opportunity to argue human rights issues before the Courts in cases where the Commonwealth takes a different view to the HREOC and there is the possibility of the Commission being controlled politically.

Moreover, the Bill overlooks situations where the Commission may have a very real contribution to make in terms of its expertise and specialisation in human rights, even while the Commonwealth may be intervening in the matter.

The amendment is fundamentally at odds with the Commission's role as an independent body with unfettered power in the realm of monitoring and promoting Australia's compliance with its human rights obligations.

The placing of conditions on the Commission's ability to intervene is contrary to the Paris Principles, which Australia played a key role in developing, and which provide that a national institution vested with competence to promote and protect human rights shall "freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or any petitioner".

It was for this reason that the Senate Legal and Constitutional Committee recommended that a similar provision be removed from the Human Rights Legislation Amendment Bills 1 an 2, introduced by the Government in 1996 and 1998 respectively.

Second, the bill provides for the restructuring of the HREOC and its renaming as the Australian Human Rights Commission. The existing portfolio of Commissioners who are responsible for the areas of human rights, sex discrimination and the rights of indigenous people are to be replaced by three Human Rights Commissioners and headed by the newly-created role of President. The three Commissioners are to have overlapping responsibilities, which have yet to be identified. HREOC views this change as unproductive and unnecessary as its current structure provides a strong education and advocacy role for individual Commissioners and has received considerable community support since 1986. (see box)

Third, the Commission's power to recommend the payment of damages or compensation following inquiries into certain types of complaints is also to be removed.

Fourth, education and dissemination of information are proposed as the central functions of the revised HREOC, with the proposed intention of emphasising the message that human rights are everybody's responsibility, in an attempt to prevent discriminatory behaviour rather than reacting after it has occurred. Accordingly, a new slogan has been devised for the Commission: "Human Rights-Everyone's Responsibility".

Fifth, the Bill removes provisions for establishing a Community Relations Council and advisory committees and for other statutory consultative mechanisms which it believes are no longer required.

The Australian Government claims that the Bill is the result of a detailed examination by the Government of the structure of the HREOC and past efforts at reform and that the changes will maintain and enhance anti-discrimination laws. It suggests that the revised structure will provide a more flexible framework to accommodate new areas of responsibility such as age discrimination, and manage the increasing incidence of issues which cross existing portfolio boundaries such as matters relating to women with disabilities. Those functions that are currently legislatively allocated to individual commissioners will be retained and will come under the general umbrella of HREOC responsibilities.

On the controversial subject of the reduction of intervention powers the Government claims that this will ensure that the wider interests of the Australian community are taken into account in the exercise of the intervention function as the Bill provides the Attorney-General with a broad list of criteria when considering whether to grant intervention.

On the matter of the removal of the HREOC's power to recommend the payment of compensation and damages the Government emphasises that the HREOC will retain its right to make practical recommendations to remedy or reduce loss or damage suffered by a person as a result of an act of discrimination.

The Government claims that this clause "will improve the balance between choices and remedies by encouraging parties to find practical and genuine solutions to their disputes rather than focussing on financial compensation". It suggests that non-financial remedies, such as apologies, can be equally if not more effective than financial ones.

However, the denial of financial powers removes this as an option which may offer the most appropriate form of relief to victims of discrimination who have lost their income as a consequence. At the least it denies the commission's discretionary powers to exercise and award the most appropriate form of compensation in each case.

Human rights lawyers and opposition parties have also reacted angrily to the proposed bill. They see it as shearing the powers of the HREOC and making its work more generalised, with themes such as education replacing its more concrete and practical powers of intervention and financial compensation. As Australia's pre-eminent body on human rights this is a worrying development. HREOC has, for 17 years, effectively fulfilled its mandate through its existing powers and structure and views these changes as restricting its ability to continue to do so.

The essence of the Paris Principles is that a national human rights institution should maintain, and be permitted to maintain, the independence and mandate that is essential for it to operate in an uncompromised manner. If any human rights body becomes subject to the direction and control by a government its effectiveness, integrity and impartiality are compromised and it will have no credibility in the eyes of those whose rights are to be protected.

The Bill amends five acts including the Human Rights and Equal Opportunity Act of 1986 and makes consequential amendments to 13 other acts. The alterations must be seen as at best unnecessary and at worst sinister.

The HREOC has rebuffed earlier attempts to limit its powers and a vocal lobby is forming to ensure that it does so again.

Interested parties are encouraged to make submissions to this effect to the Senate Legal and Constitutional Committee at legcon.sen@aph.gov.au.