Chapter 3
Reorganisation of the Commission's executive structure and the replacement
of Commissioners with deputy presidents
Introduction
3.1 The 1998 bill proposed the reorganisation of the commission by abolishing
five of the existing commissioner positions and creating three deputy
president positions in their place; and creating a separate Office of
the Privacy Commissioner (the sixth existing commissioner position).
3.2 The executive structure of the new commission would consist of the
president and the three deputy presidents, each of whom would also have
responsibility for one of the following grouped subject areas:
- social justice and race;
- sex discrimination and equal opportunity; and
- human rights and disability.
3.3 There were two reasons for this change. The first is that, as identified
by the tripartite review [1], the commission
is unnecessarily top heavy. The Attorney-General reiterated this recently:
I can add, from my own perspective, that it seemed odd to me that a
portfolio agency would have at the deputy secretary level more persons
than were in the department itself at the same time. [2]
3.4 Secondly, the development of a collegiate group of deputy presidents,
with overall responsibility for human rights while still retaining certain
specialisation, should improve the effectiveness of the commission. As
the Law Council of Australia pointed out in its submission:
The situation where there were separate commissioners for each area
of human rights was not administratively ideal, particularly when a
case raised various aspects of human rights and equal opportunity law.
[3]
3.5 Mr Richard Moss of the Attorney-General's Department further explained
in evidence that:
… what is proposed can be described as a compromise between the
situation of specialist commissioners and having generalist deputy presidents.
[4]
3.6 Submissions and evidence to the committee raised two main issues
concerning this proposal:
- the loss of specialised commissioners; and
- lack of transitional arrangements for the existing commissioners.
Loss of specialised commissioners
3.7 A number of submissions argued that the subject areas of discrimination
are so significant that they warrant special commissioners, who have personal
understanding of those they represent:
… public and private policy development tends to lack awareness
and understanding of the diverse needs of the Australian community.
Specialist commissioners who bring particular expertise in and/or experience
of discrimination first hand has enabled a greater depth of response
and policy development by the Commission than would have occurred with
generalist commissioners…
… this change will result in there never again being a Deputy
President or President appointed who has personal experience of the
disadvantages imposed on these two groups by ignorance, intolerance
and prejudice. [5]
3.8 There was also concern that grouping the subject areas may result
in a lack of expertise and focus:
Experience with numerous government programs is that when the needs
and rights of people with disabilities are amalgamated with the needs
and rights of another group … the needs of people with disabilities
are relegated to a secondary position. [6]
Conclusions
3.9 Whilst recognising the concerns expressed in submissions, the committee
considers that this change represents a justifiable move to improve the
management structure of the commission. The commission itself recognised
that:
… there is no perfect or universally recommended structure for
a national human rights institution, the most appropriate structure
will depend on the particular circumstances in the country at a particular
time. [7]
3.10 Neither the collegiate responsibility of the deputy presidents,
nor the designation of spheres of responsibility for each deputy president
is intended to limit his or her ability to develop specialisations in
other important areas of human rights, for example children's rights,
age discrimination or other issues. [8] In addition,
the proposed legislation requires persons appointed as deputy presidents
to the new commission to have the same expertise, qualifications and experience
as persons appointed commissioners to the old commission [9].
Recommendation No. 3:
The committee recommends that the provisions of the 1998 bill
relating to the restructure of the commission remain unchanged.
Lack of transitional arrangements for the existing commissioners
3.11 A number of submissions suggested that termination of the appointments
of the existing commissioners before the expiration of their terms may
be regarded as a violation of the independence of HREOC, according to
the Paris Principles on National Human Rights Institutions, which Australia
insists on at an international level as a non-negotiable benchmark. [10]
3.12 The Paris Principles provide that:
In order to ensure a stable mandate for the members of the national
institution, without which there can be no real independence, their
appointment shall be effected by an official act which shall establish
the specific duration of the mandate. [11]
3.13 In its submission HREOC observed that the bill contains transitional
arrangements for the continuity of the term of the president of the commission,
however, the bill:
… does not provide equivalent transitional provisions for the
current Commissioners to transfer to Deputy President positions. The
absence of the transitional provisions affects the security of tenure
of the current Commissioners which is integral to the nature of their
appointments.
The omission of such transitional provisions also threatens the stability
of and the public confidence in the Commission as it creates the perception
that the Government is threatening the independence of the Commission.
[12]
3.14 Both Professor Tay, the President of HREOC, and Professor Charlesworth
reinforced these arguments at the committee's public hearings on the bill.
Professor Tay described the lack of transitional arrangements for the
existing commissioners as “a constructive dismissal of fixed term
statutory appointees” which would “send a very poor message
not only to the people of Australia but also to human rights groups and
organisations internationally and regionally”. [13]
Professor Tay also stated that:
This, then, simply says that if you hold tenure at the pleasure of
legislation you do not have sufficient independence to carry out your
functions fearlessly. [14]
3.15 In her evidence, Professor Charlesworth suggested that:
The only explanation, it seems to a distant observer, is that perhaps
these commissioners have been too effective in the way they have promoted
human rights concerns.
… Under the Paris Principles … adopted by the General Assembly
of the UN in 1992, one of the elements of independence specifies fixed
terms for people working in national human rights bodies. It is clear
that if one can, by legislation, artificially truncate those terms,
that undermines that aspect of the Paris Principles. As other submissions
have probably remarked, it is curious that Australia has taken a very
strong line on promoting the Paris Principles. In our region we are
the leading government pushing the idea of the need to build up effective
national institutions. We say that the Paris Principles should be the
bedrock of other countries' national institutions, yet we in our own
country are not observing the Paris Principles. [15]
3.16 In evidence before the committee, Mr Richard Moss of the Attorney-General's
Department accepted that the Paris Principles, although not binding, are
“a very considerable, persuasive force” [16].
However, Mr Moss argued that the lack of transitional provisions for the
existing commissioners did not breach the Paris Principles. Mr Moss suggested
that Professor Charlesworth's interpretation of the Paris Principles reflected
an overly inflexible interpretation of the principle. [17]
Mr Moss argued that the provision:
… particularly the reference to the specific duration of the mandate,
has to be read sensibly. It cannot be read as meaning that there can
be never any removal or a shortening of the original mandate, because,
for example that would prevent the removal of members on the basis of
the normal grounds for removal, such as physical or mental incapacity,
misconduct and the like.
Our view is that it similarly has to be read flexibly, having regard
to a situation in which the commission has been substantially restructured.
That being the case, we would say that the principles have to be read
as permitting the government to regard the institution as a new one
and the mandate as having to be renewed. [18]
3.17 The committee notes that section 41 of the HREOC Act already provides
for the termination of the tenure of a commissioner in certain circumstances,
including bankruptcy or misconduct.
3.18 The committee also notes that (excluding the Privacy Commissioner
from the analysis) only three commissioners are currently in place, and
that their terms expire as follows:
- Ms Zita Antonios – appointment expires 25 September 1999
- Mr Chris Sidoti – appointment expires 13 August 2000; and
- Ms Susan Halliday – appointment expires 26 April 2001. [19]
3.19 The committee further notes that the current division of responsibilities
between the three commissioners closely matches that proposed by the bill
for the three new deputy presidents:
- Ms Antonios is the Race Discrimination Commissioner and Acting Aboriginal
and Torres Strait Islander Social Justice Commissioner;
- Ms Halliday is the Sex Discrimination Commissioner; and
- Mr Sidoti is the Human Rights Commissioner and Acting Disability Discrimination
Commissioner.
Conclusions
3.20 The committee noted the explanation by the officers of the Attorney
General's Department, that the lack of transitional arrangements for the
existing commissioners did not breach the Paris Principles. However, having
considered the matters raised by various submissions and in evidence and
taking into account the existence of transitional provisions for the president
of the commission, the committee considers that the lack of transitional
arrangements for the current commissioners may be perceived, both in Australia
and overseas, as an attack on the independence of the commission.
3.21 This perception may well be heightened by the proposed allocation
of responsibilities between the deputy presidents in the 1998 bill, that
so closely resembles the current allocation of responsibilities to the
current commissioners; and the relatively short remaining tenures of the
current commissioners.
3.22 The committee is therefore of the view that any perception that
the lack of transitional arrangements violates the Paris Principles is
voided by the inclusion of such transitional arrangements for the current
commissioners, similar to those for the president. This would enable the
new commission structure to be implemented with minimal disruption, thereby
giving effect to the policy of the Government, while at the same time
neutralising any suggestion or perception of improper interference with
the independence of the commission.
Recommendation No. 4:
The committee notes that on the current legislative timetable, the terms
of the current commissioners are not likely to be impacted, however, the
committee recommends that the 1998 bill be amended to include transitional
arrangements for the current commissioners, enabling them to serve out
the remainder of their appointments as Deputy Presidents.
Separate Office of the Privacy Commissioner
3.23 The committee notes that the provisions relating to the creation
of a separate Office of the Privacy Commissioner attracted little comment.
Recommendation No. 5:
The committee recommends that the provisions of the 1998 bill
concerning the creation of a separate Office of the Privacy Commissioner
remain unchanged.
Footnotes
[1] The tripartite review team comprised officers
of the Attorney-General's Department, the Department of Finance and HREOC,
and was established in 1993 to examine the functions and management of
the commission. Its report was finalised in 1995, but has not been made
public.
[2] House of Representatives Hansard,
30 June 1998, p. 5506.
[3] Submission No. 22, Law Council of Australia,
p. 2.
[4] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 13.
[5] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, pp. 6-7.
See also Submission No. 7, Women's Electoral Lobby, p. 6; Submission No.
8, Women In Politics, p. 3; and Submission No. 13, Women's Resource Centre,
p. 2.
[6] Submission No. 17, Physical Disability Council
of Australia, p. 2.
[7] Submission No. 11, Human Rights and Equal
Opportunity Commission, p. 9.
[8] Explanatory memorandum to Human Rights Legislation
Amendment Bill (No. 2) 1998, p. 6, paragraph. 23.
[9] Explanatory memorandum to Human Rights Legislation
Amendment Bill (No. 2) 1998, p. 7, paragraphs 28-29.
[10] Submission No. 9, Professor Hilary Charlesworth
and Associate Professor Robert McCorquodale, p. 3. See also Submission
No. 11, Human Rights and Equal Opportunity Commission, p. 7.
[11] See Appendix 3: The Paris Principles –
Principles relating to the status of national institutions – Competence
and responsibilities: Composition and guarantees of independence and pluralism,
p. 2, paragraph 3.
[12] Submission No. 11, Human Rights and Equal
Opportunity Commission, p. 7.
[13] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 2.
[14] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 6.
[15] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 18.
[16] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 14.
[17] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 15.
[18] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 14.
[19] Human Rights and Equal Opportunity Commission
homepage: http://www.hreoc.gov.au/about/pres_comm/index.html