Human Rights and Equal Opportunity Commission (HREOC) under attack by Government Bill

Action alert: 4 September 2003
Write a letter opposing passage of the Bill

The Federal Government produced draft legislation in 2003 to change the structure of the Human Rights and Equal Opportunity Commission (HREOC). The Bill would result in the significant and unwarranted weakening of HREOC's capacity and independence to monitor and defend human rights, particularly for Indigenous Australians.

Following concern about the effects of the proposed Bill, the Senate Legal and Constitutional Legislation Committee held an inquiry into the Bill's provisions.

See current Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr Bill Jonas' comments on the bill.

ANTaR lodged the following submission to the Inquiry:

29th April 2003

The Secretary Senate Legal & Constitutional Legislation Committee
Parliament House
CANBERRA ACT 2600

Dear Sir/Madam,

Re: Inquiry into the provisions of the Australian Human Rights Commission Legislation Bill 2003

Thank you for the opportunity for ANTaR to make a submission on the Australian Human Rights Commission Legislation Bill 2003.

ANTaR is concerned that the proposed Bill will seriously undermine the capacity, and independence of the Human Rights and Equal Opportunity Commission in monitoring and defending human rights in Australia. In fact, there remains a disturbing perception that the proposed Bill represents a deliberate attempt to limit the effectiveness of the Commission, particularly in its ability to monitor and challenge the human rights record of the Commonwealth.

Abolishing the position of ATSI Social Justice Commissioner

One of the most effective of the HREOC Commissioner positions has been that of Aboriginal and Torres Strait Islander Social Justice Commissioner. Dr Mick Dodson and current Commissioner, Dr Bill Jonas, have been outstanding in their achievements as ATSI Social Justice Commissioners, in no small part due to the breadth of their experience in Indigenous affairs and Indigenous community life.

By abolishing this specialist position and by failing to require that any of the proposed generalist Commissioners have significant experience in Aboriginal and Torres Strait Islander issues, protection of the human rights and social justice interests of Indigenous Australians will be downgraded and compromised.

This is especially so in light of the fact that there has been little or no progress in addressing the human rights and social justice position of Indigenous Australians, particularly with respect to their marginalisation and disadvantage. Indeed, there is a strong perception that the Commonwealth's move to abolish this position represents a further attempt to limit scrutiny and criticism of its failure to improve the position of Indigenous Australians.

Removal of specialisation and reduction in the number of Commissioners

In addition to the specific impacts of the removal of the position of the ATSI Social Justice Commissioner, the abolition of portfolio Commissioners will result in a significant loss of specialist knowledge and experience by the Commission, not only of the Commissioners themselves, but also amongst the Commissioners' staff. The Government has made no compelling argument as to how the abolition of portfolio Commissioners can maintain, let alone improve, the effectiveness of the Commission's work.

Similarly, reduction in the overall number of Commissioners will impact on the productive capacity of the Commission. It is noted that the Government has already achieved a de-facto reduction by failing to replace some outgoing Commissioners and by shuffling portfolios amongst the remaining Commissioners. ANTaR submits that the full complement of Commissioners should be restored, rather than diminished.

Requirement for Attorney General's approval to intervene in court proceedings

ANTaR is greatly concerned by the proposed change requiring that the Commission seeks permission from the Attorney-General to intervene in court proceedings raising human rights principles. This would create a serious conflict of interest in situations where the Commonwealth might oppose the submissions of the Commission or where the Commonwealth was itself a party whose actions were being challenged. The Attorney-General cannot be regarded as independent in such situations, raising the prospect or perception that a refusal by the Attorney-General may represent an attempt by the Government to silence criticism.

This is not of purely academic concern given that in a number of cases where the Commission has intervened to date, the Commonwealth has been a party to the litigation.

Indeed, it is the very inability of the Attorney-General (as a member of Cabinet) to be truly independent and the need for the Government itself to be accountable, that makes it essential that the Commission retains its independence with respect to the power of intervention.

The Attorney-General's lesser argument that proper supervision of the expenditure of public monies requires such a change also seems somewhat feeble. More so when it is considered that the Commission's interventions to date have all been accepted by the courts, suggesting that the Commission has demonstrated responsibility in the use of its powers.

ANTaR submits that the courts, not the Attorney-General, provide an appropriate, independent mechanism for determining whether the Commission should be permitted to intervene.

Removal of power to recommend compensation

There appears no reasonable justification as to why the power to recommend compensation should be removed from the Commission. In fact, it would seem that, despite not being enforceable, such a power has both educational and moral value as one of a broader range of remedies available to the Commission in making recommendations in relation to cases of human rights violations and discrimination.

Education and responsibility

The Bill takes a somewhat curious approach in making education the focus of the Commission's activities. While education is undoubtedly an important role of the Commission, one wonders how this is achieved by mandating use of the phrase "human rights - everyone's responsibility". While the expression appears benign enough, its inclusion in the legislation seems to be a case of inappropriate and somewhat comical micro-management and may have the unintended negative effect of limiting effective alternatives for future public education initiatives. Why not let the Commission itself - as the acknowledged expert body charged with the responsibility for carrying out its educational role - develop its own slogans?

Change of the name of the Commission

ANTaR supports the change of the name of the Commission to the Australian Human Rights Commission. ANTaR would be happy to provide further information or to give evidence before the Committee on our submission should this be required.

yours sincerely

Dr David Cooper
National Coordinator

Further information:

Statement made by Commissioner Jonas on the HREOC Bill: http://www.humanrights.gov.au/ahrc/jonas_statement.html