The Secretariat
Senate Legal and Constitutional Committee
Room S1.61, Parliament House
Canberra  ACT  2600

24 April 2003

Dear Sir

Submission to the Inquiry into the provisions of the Australian Human Rights Commission Legislation Bill 2003

Please find enclosed the Public Interest Advocacy Centre’s submission to the Inquiry into the provisions of the Australian Human Rights Commission Legislation Bill 2003.

We understand that regrettably, there is no longer any opportunity for PIAC to appear before the Committee at its Sydney hearings.  We appreciate that you have had an extraordinary amount of interest in the Inquiry and should it be possible, we would welcome the opportunity to appear before the Committee in Canberra on 12 May 2003.  

Should you have any queries about our submission, please do not hesitate to contact either Annie Pettitt, Policy Officer at apettitt@piac.asn.au or Simon Moran, Principal Solicitor at smoran@piac.asn.au.

We look forward to hearing from you in regard to the Canberra hearings.  

Yours sincerely
Public Interest Advocacy Centre

Andrea Durbach
Director

Email:		adurbach@piac.asn.au

Submission to the Senate Legal and Constitutional Committee on the Australian Human Rights Commission Legislation Bill 2003

Public Interest Advocacy Centre

The Public Interest Advocacy Centre (“PIAC”)

The Public Interest Advocacy Centre (PIAC) is an independent and non-profit legal and policy centre located in Sydney. Its charter is: 

to undertake strategic legal and policy interventions in public interest matters in order to foster a fair, just and democratic society and empower citizens, consumers and communities.

Established in July 1982 as an initiative of the Law Foundation of New South Wales, PIAC was the first, and remains the only, broadly based public interest legal centre in Australia. Although located in New South Wales, the matters PIAC undertakes are often of national interest or importance or have consequences beyond state boundaries. 

PIAC’s work goes beyond the interests and rights of individuals. The Centre's clients and constituencies are primarily those with least access to economic, social and legal resources and opportunities.  PIAC provides its services free or at minimal cost.  

PIAC has advised and acted for clients in numerous actions under the Disability Discrimination Act 1992 (“DDA”), the Sex Discrimination Act 1984 (“SDA”) and the Race Discrimination Act 1975 (“RDA”). PIAC has also made a number of submissions on proposed changes to the Human Rights and Equal Opportunity Commission Act 1986 (“HREOCA”). PIAC has appeared as amicus curaie in a number of cases raising human rights considerations (eg HREOC v Mount Isa Mines and Brandy v HREOC). In addition, PIAC has conducted various policy projects evaluating the law and practice of complaint handling by the Human Rights and Equal Opportunity Commission (HREOC), examining Indigenous women’s experience of discrimination and their access to complaint mechanisms and proposing alternatives to litigation for seeking redress for members of the stolen generations. 

The Australian Human Rights Commission Legislation Bill 2003

The enhancement of Australia’s human rights mechanisms is an important and critical objective. PIAC believes, however, that the amendments envisaged by the Australian Human Rights Commission Legislation Bill 2003 (“the Bill”) fall short of achieving this intention. On the contrary, the Australian Human Rights Commission Legislation Bill 2003 serves to reduce the powers and independence of the human rights monitoring system as well as the observance of human rights in Australia. PIAC’s experience of challenging systemic discrimination, relying on human rights legislation, demonstrates the importance of having a strong and independent national human rights institution which can, without being subject the vagaries of political will, exercise its functions consistent with human rights principles and practices.

We address below some of our major concerns with the provisions of the Bill. 

1.	Change of name

While PIAC objects to the overall provisions of the Bill, we believe that the proposed name change for the Human Rights and Equal Opportunity Commission (“the Commission”) is succinct and consistent with the designation of similar national human rights institutions around the world. We believe that it is appropriate that equal opportunity considerations be incorporated within an overall human rights framework and be reflected as such. 

PIAC supports the proposed change of the Commission’s name to the Australian Human Rights Commission. 

2.	Rights and responsibilities by-line

The proposed by-line, ‘human rights – everyone’s responsibility’ may well have resulted from the failure of previous attempts to introduce ‘Responsibilities’ into the Commission’s name. However, PIAC believes that the introduction of such a by-line in the name of a national human rights body, will detract from the role that government must assume in order that the human rights of all those living in Australia be respected and protected. 

With the establishment of the Commission the Australian government made it clear that it would fulfil its obligations to ensure the protection of human rights through an independent statutory body. PIAC believes that by the rigorous performance of its functions, the Commission can educate the community to respect human rights; correspondingly, the community can have the confidence that government will protect against and remedy any human rights breaches.  

While the Commission may itself wish to adopt such a concept as part of an educative or awareness raising campaign, PIAC is of the view that it is inappropriate for the executive or the legislature to prescribe any branding for an independent statutory authority. 

PIAC opposes any prescription by the government of a Commission by-line, as a de facto means of renaming or branding the Commission. 

3.	Proposed executive structure 

Reduction in Commissioner numbers

Over the last approximately six years we have witnessed the insidious shrinkage of the capacity of Commissioners to adequately exercise their functions. Since 1997, the responsibilities and functions of the Disability Discrimination Commissioner have been added to those of the Human Rights Commissioner. In addition, since 1998 responsibilities for Aboriginal and Torres Strait Islander Social Justice and Race Discrimination have been carried by one Commissioner. Thus we have seen the de facto implementation of structural reforms to the Commission’s executive structure, by reducing the number of Commissioners from five full-time Commissioners, each with their own area of responsibility, to three Commissioners who carry additional areas of responsibility without the allocation of additional resources. 

PIAC believes that the government’s attempts to legitimate the current structure of the Commission’s executive, offends HREOCA which provides that the ‘Commission shall consist of a President; and a Human Rights Commissioner; and the Race Discrimination Commissioner; and the Aboriginal and Torres Strait Islander Social Justice Commissioner; and the Sex Discrimination Commissioner; and the Disability Discrimination Commissioner.’ 

The Commission is a national human rights body with extensive responsibilities for a variety for individuals and communities who potentially face breaches of their human rights. It is responsible for protecting the rights of people in six states and two territories. By reducing the number of Commissioners from five to three the government is reducing the capacity of the Commission to effectively promote and protect human rights across Australia. Accordingly, PIAC does not endorse a reduction in the number of Commissioners and rather argues for an increase in the Commission’s capacity and resources. 

PIAC recommends that the five full-time Commissioner positions be reinstated.

Generalist Commissioners

PIAC believes that one of the primary roles of the Commission is to build a human rights culture. In fulfilling this role, PIAC believes that it is important that Commissioners are given the necessary resources to develop an appreciation of the various needs of individuals and communities, particularly those who suffer social and cultural disadvantage. To this end, PIAC believes that the Commissioners should be given the opportunity to both develop expertise in relation to specific areas of discrimination and build close links with relevant communities, government and non-government agencies. 

While PIAC acknowledges that the appointment of generalist, as opposed to specialist, Commissioners may enable the Commission to better respond to issues that cross over portfolio-specific boundaries, we would nevertheless argue that the Commissioners must reflect the characteristics and expertise relevant to those communities whose rights require significant visibility and enhancement.  This should be an essential element of the appointment process if the work of the Commission is to secure and maintain the confidence of those who seek its protection. 

One of the arguments that the government advances in support of generalist Commissioners is that ‘human rights issues increasingly cross over the portfolio specific boundaries of the existing structure (such as issues relating to women with disabilities)’. It is true that the current Australian anti-discrimination legislation does not adequately address discrimination that is either the combination of two or more forms of discrimination, or discrimination that occurs at the intersections of these portfolio specific categories (for example, women from culturally and linguistically diverse backgrounds who experience discrimination on the basis of their sex and race or ethnicity). 

PIAC however believes that the issue of intersectional discrimination will not be solved by the appointment of generalist Commissioners. To effectively address this issue will require an analysis of the impact of piecemeal legislative responses to human rights issues and alternative proposals to address these issues, such as the development of a Bill of Rights.

PIAC recommends that the appointment of Commissioners reflect the characteristics and expertise relevant to those communities whose rights require significant visibility and enhancement.

Commissioner appointment process

Linked to the question of the attributes of Commissioners is their appointment process. For this reason, PIAC would strongly recommend that the appointment of Commissioners be subject to a process that is independent and transparent. This process, which could achieve a guarantee of appropriate and credible appointments, should require that the criteria for appointment should have reference to academic background, experience and particular attributes relevant to the Commission’s constituents and be widely publicised. 

As currently stands in Australia, the appointment of Commissioners is the prerogative of the government of the day which, PIAC would argue, may compromise the independence of the Commission. There are a number of models in the region for the appointment of human rights commission members that could inform the process for appointment in Australia to ensure the independence of the Commission. Commission members in nations such as Nepal, Fiji, and India are appointed by the Head of State on advice from a committee consisting of the Prime Minister, the Opposition Leader and the Chief Justice.  In Mongolia members are nominated upon recommendations from the President to the Parliamentary Standing Committee on Legal Affairs and the Supreme Court. While in Korea, the President, the National Assembly and the Chief Justice each have an allocated number of members they select; in addition, four or more of the Commissioners must be women. In Thailand and Indonesia members are elected by the legislature on recommendation from a selection committee, which included representatives from non-government human rights organisations. 

PIAC believes that a review of the appointment process of Commissioners which could lead to their selection on merit by a bipartisan body or one independent of government, will not only ensure the integrity of appointment but also serve to reinforce independence of the Commission.

PIAC recommends that the method for the appointment of Commissioners be reviewed with the intention of strengthening the independence of the Commission.
Complaints Commissioners

Section 42 of the Bill proposes the appointment of Complaints Commissioners. While this provision might assist in ensuring efficient and effective complaint handling, PIAC has a number of concerns relating to this recommendation. 

If, as the Attorney General’s second reading speech indicates, this provision has been introduced to accommodate concerns about the workload of the President and the Commission, PIAC submits that this concern is more appropriately addressed by providing additional resources to the Commission to employ additional staff as they see fit. 

PIAC’s real concern with this provision, however, is the proposed part-time appointment of Complaint Commissioners to assist the Commission on an ad hoc basis. We believe that the complaint handling function of the Commission is a fundamental component of its role and should be conducted by Commission employees who enjoy both security of tenure and maximum independence from government. PIAC believes that Complaints Commissioners appointed by the Attorney General on short-term contracts, as he/she sees fit, may mean that these Commissioners may not be able to exercise their functions freely and impartially.

While supporting the proper resourcing of the complaint handling functions of the Commission, PIAC opposes the current proposal for part-time Commissioners appointed directly by the Attorney General. 

4.	Education role of the Commission

The Bill places great emphasis education as a priority focus of the Commission. While PIAC endorses this role of the Commission, we strongly believe that the resolution of complaints has a significant impact on changing behaviour. For this reason, PIAC believes that the government’s current focus on education should not be implemented at the expense of the Commission’s key functions. 

PIAC supports the education function of the Commission, but opposes the prioritising of this role at the expense of the Commission’s key complaint and conciliation functions.

5.	Intervention Powers

PIAC strongly opposes the provision in the Bill that gives the Attorney General the power to veto a decision of the Commission to intervene in legal proceedings. 

Currently the Commission, where it considers it appropriate to do so, may intervene in proceedings that involve human rights issues, ‘with the leave of the court… and subject to any conditions imposed by the court’ (HREOCA Section 11(o)).   For example, an application to intervene in proceedings before the Federal Court of Australia would be made pursuant to Order 6 Rule 17 of the Federal Court Rules, which states that:
‘In deciding whether to give leave, the Court must have regard to:

(a)	whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and

(b)	whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish; and

(c)	any other matter that the Court considers relevant.’

Importantly, Order 17 (3) explicitly states that ‘the role of the intervener is solely to assist the Court in its task in resolving the issues raised by the parties.’

Should the Court grant the intervener leave to intervene in proceedings, the intervener unlike an amicus curaie assumes the ‘rights, privileges and liabilities (including liabilities for costs),’ of a party to the proceedings. Amicus curaie intervener on the other hand, do not assume any of the rights or corresponding obligations of a party to legal proceedings (Order 17(1)).

It is PIAC’s firm view that where a person is seeking leave to intervene in legal proceedings:
-	with the stated purpose of assisting the Court in its task of resolving the issues raised by the parties; and
-	with the intention of becoming a party itself to the proceedings,
it is appropriate that the Court, in the presence of all the parties to the proceedings, determines the appropriateness of the proposed intervention.

What the Bill envisages is that this process of determination by a Court, based on explicit criteria (as contained in Order 17 (2) and (3)), would be usurped by the Attorney General who would evidently conduct an invisible process, based on unknown criteria and subject to a number of factors that the Attorney General ‘may (but need not) have regard to..’

The Attorney General suggested in his second reading speech that the veto power ‘is not intended to prevent court submissions that are contrary to the government’s views, but rather to prevent duplication and the waste of resources and to ensure that court submissions accord with the interests of the community as a whole’. 

Leaving aside the question of conflict of interests, PIAC believes that the Courts, in the interest of the administration of justice, are best placed to assess the extent to which an intervention would lead to a duplication of evidence and arguments raised by the parties to the proceedings and any consequent waste of resources. Importantly, the Court may, pursuant to Order 17, allow an intervention ‘subject to any conditions’ it sees fit to impose. In addition, we believe that the “interests of the community” are best served by an examination in a public forum that is open to challenge by all the parties to the proceedings.

The difference between the exercise of a discretion by a member of a legislative organ of government and decision reached by a court, is significant. The former exercises a political discretion, taking into account the political preferences of an electorate. The judicial process however, allows for the making of a determination based on an objective assessment of all the available material before it and the application of relevant law. It is for this reason that PIAC is strongly opposed to the Attorney General having a power to veto an application by the Commission to intervene in legal proceedings that involve human rights issues. 

An additional aspect of the amendments which raises concern is the likelihood of the Attorney General being placed in a position of conflict of interest and as a result, refusing to allow an intervention by the Commission.

The Attorney General is the first legal officer of the Commonwealth of Australia. Accordingly one of his primary roles is to advise and act in matters to which the Commonwealth is a party. A conflict of interest arises for the Attorney General when the Commonwealth is party to proceedings and most starkly where the Attorney General is himself a party to proceedings. The conflict arises whether or not the submissions are supportive. However the major concern, which the Attorney General has himself highlighted, is where the Commission’s submissions are contrary to the government’s view.

This scenario has recently arisen in a number of controversial cases. For example, the Attorney General was a party in Re McBain; Ex parte Attorney General of Australia [2002] HCA 16. In that matter, which related to provision of IVF treatment to a single woman and lesbians, the Commission along with others, successfully opposed the orders sought by the Attorney General. The Attorney General was required to pay the Respondent’s costs for his application.

A conflict would also have directly arisen in The Attorney-General for the Commonwealth & "Kevin and Jennifer" & Human Rights and Equal Opportunity Commission [2003] Fam CA 94. This Full Family Court appeal related to a trial judge finding that a male transsexual is a `man' for the purpose of the Marriage Act. In contrast to the argument made by the Attorney-General, the Commission submitted that the meaning that should be given to the word "man" should be its ordinary current meaning, informed by international human rights principles, rather than the meaning that the word may have had when the Marriage Act was enacted in 1961.

A third and final example is Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70. This case related to whether continued detention of immigration detainees was authorised where there was no real likelihood or prospect of removal in the reasonably foreseeable future. This was a controversial and significant matter. Once again, the Commission’s submissions were contrary to the government’s position.

These examples are indicative of situations that will in the future arise. The government’s position has, and in all likelihood may, often be at odds with fundamental human rights principles. The temptation for the Attorney General to reject the Commission’s request to intervene, particularly when proceedings involve controversial human rights issues, may well be irresistible.

In its narrow sense the conflict could severely restrict the Commission’s power to intervene and the government’s accountability. In a wider sense the veto power, by fettering the right of the Commission to intervene, impedes the development of a body of law based upon fundamental human rights principles by limiting the issues put before the Court. Often in such cases the parties involved are focused primarily on the specific causes of action upon which they rely. Accordingly, the Commission, where it has intervened, has brought to courts’ attention human rights issues not previously raised by the parties. In these instances, we believe that the Commission has played a critical role in assisting courts and promoting a jurisprudence based upon human rights principles.

PIAC is opposes granting the Attorney General a power to veto the decision of the Commission to intervene in legal proceedings and recommends that this power continue to be exercised solely by the courts.

6.	Strengthening human rights in Australia

As we indicated above a key action to increase the effectiveness of the Commission would be to make permanent appointments to the Human Rights and Disability Discrimination Commissioner.

If we were to recommend one key legislative change that would significantly enhance the Commission's effectiveness in achieving its goals it would be to  give the Commission power to seek injunctive relief in its own name where there has been a contravention of HREOCA, the RDA, the SDA and the DDA. For example the Commission could be given an analogous function to that exercised by the Australian Competition and Consumer Commission under s.80 of the Trade Practices Act. The Commission is in a strong position to undertake action in areas where it considers that systemic discrimination has occurred and there is no prospect that it will stop. The Commission has the expert knowledge to support such an action and would clearly be in a stronger position to undertake such a complaint than an individual complainant.

PIAC recommends that HREOCA be amended to give the Commission power to seek injunctive relief in its own name where there has been a contravention of HREOCA, the RDA, the SDA and the DDA

7.	Conclusion

As human rights principles become increasingly compromised and the capacity to exercise rights is curtailed, it is critical to ensure that Australia’s national human rights institution has sufficient people and financial resources for the effective promotion and protection of human rights for all those living in Australia. It is for this reason that PIAC rejects the majority of the provisions in this Bill.