Chapter 4
New central functions of education, dissemination of information, and
assistance to business and the community
Focus on education role
4.1 The 1998 bill provided for the commission to focus on its role of
education. As the Attorney-General indicated in the second reading speech:
The bill makes it clear that the new commission's priority will be
to educate Australians about human rights and discrimination, and to
help them to understand their responsibility, as members of the Australian
community, to respect other people's human rights. [1]
4.2 Most submissions that considered this aspect of the bill supported
the education of the general community about human rights. For example,
the Human Rights and Discrimination Committee of the Combined Community
Legal Centres' Group stated that:
One of the difficulties experienced by many people who are discriminated
against, particularly with disabilities, is the very low levels of awareness
of anti-discrimination laws that protect those people from less favourable
treatment. This means that many complaints of discrimination arise out
of ignorance in the broader community. Any efforts to reduce the level
of ignorance and ensure the broader community becomes pro-active in
ensuring its own compliance with anti-discrimination laws is to be encouraged.
[2]
4.3 This support was confirmed during the committee's hearings. Professor
Tay, the president of the commission, stated that:
Many of the proposals contained in the bill, especially those emphasising
the commission's educational role, are welcomed by the commission. [3]
Professor Charlesworth similarly supported the educative focus:
We also welcome, as educators, the emphasis on education. [4]
4.4 However, a number of submissions expressed concern that this emphasis
on education should not be at the expense of the commission's complaint
handling role:
Emphasis on education is not good enough. … The Human Rights Commission
still needs to continue to be seen as an institution where [people with
disabilities] can get redress and not just a soft education body. …
without a Human Rights Commission which assists in ensuring that the
DDA is upheld, the DDA might just as well be written for Martians …
“education” alone is nothing more than rhetoric, if a company
does not want to comply with the DDA. [5]
4.5 Other submissions argued that a focus on community education distracts
from the underlying issue that governments are often the greatest perpetrators
of human rights abuses:
While we welcome the recognition of the importance of education about
human rights, it is important to note that many of the rights protected
under the HREOC Act are most regularly violated by governments. We are
concerned that the change in name deflects attention from the legal
obligations (responsibilities) on governments to protect human rights,
as the change of name could be considered to imply that the responsibility
to protect human rights is solely one on individuals within Australia.
[6]
Similarly, the Refugee and Immigration Legal Centre stated that:
We fear that the Commonwealth, seeking to ease the sometimes difficult
relationship it necessarily has with a vigilant human rights commission,
may do so at the expense of the disadvantaged constituencies the Commission
has previously defended. [7]
Conclusions
4.6 The committee notes these concerns, however, it considers that this
approach is consistent with the changes to the role and functions of the
commission in light of the decision in Brandy v. Human Rights &
Equal Opportunity Commission [8]. As a result
of that decision and pursuant to the 1997 bill, the commission no longer
will have a role in hearing and making determinations on unconciliated
complaints, although it will still have a statutory complaint handling
role (paragraph 11(1)(f) of the Act). It is therefore appropriate that
the commission have a greater focus on education and reporting.
Recommendation No. 6:
The committee recommends that the provisions of the 1998 bill
relating to the changed focus of the commission remain unchanged.
Creation of guidelines
4.7 Under sections 11 and 31 of the HREOC Act and equivalent provisions
in the other federal anti-discrimination legislation [9],
the commission already has the function of creating guidelines to assist
people to comply with their obligations under the relevant legislation.
The bill reorders the priority of this function for the renamed Act, the
DDA and the SDA. [10]
4.8 The submission of the Human Rights and Discrimination Committee of
the Combined Community Legal Centres Group questioned the legal status
of such guidelines. The submission contrasted the commission's position
that guidelines are “no more than a policy interpretation of the
application of the law”, with that of the Federal Office of Regulation
Review, which “considers such guidelines to be at least quasi-regulatory”.
[11] The Human Rights and Discrimination Committee
pointed out that:
While such differing opinions remain about the status of guidelines,
they will do little to assure people and organisations that following
the guidelines will be an effective way to achieve compliance with the
law and avoid allegations of discrimination. [12]
Conclusions
4.9 The purpose of such guidelines is “to assist business and the
community to avoid discrimination”. [13]
The committee therefore considers that it is important that the status
of such guidelines is clear, and in particular, whether following the
guidelines is an effective way to achieve compliance with the law.
Recommendation No. 7:
The committee supports the provisions of the 1998 bill that reprioritise
the function of creation of guidelines and recommends that those
provisions remain unchanged.
The committee further recommends that the 1998 bill be amended
to clarify the legal status and effect of guidelines created by the commission.
Footnotes
[1] Second reading speech in House of Representatives
Hansard, 8 April 1998, pp. 2829-30.
[2] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, p. 4.
[3] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 1.
[4] Legal and Constitutional Legislation Committee
Proof Hansard, 5 August 1998, p. 17.
[5] Submission No. 14, Mr Allan Quirk, pp. 1-2.
See also Submission No. 6, Refugee and Immigration Legal Centre, p. 3;
Submission No. 2, Combined Community Legal Centres Group – Human
Rights and Discrimination Committee, p. 5; and Submission No. 19, Women's
Legal Service, p. 2.
[6] Submission No. 9, Professor Hilary Charlesworth
and Associate Professor Robert McCorquodale, p. 1.
[7] Submission No. 6A, Refugee and Immigration
Legal Centre, p. 3.
[8] 183 C.L.R. 245. The High Court decided that
registration of HREOC determinations and their subsequent enforcement
breached the doctrine of the separation of powers – this registration
and enforcement procedure was therefore unconstitutional and invalid.
[9] Section 67 of the DDA, section 20 of the
RDA and section 48 of the SDA.
[10] See items 17, 31, 78 and 123 of Schedule
1 of the bill.
[11] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, p. 7.
[12] Submission No. 2, Combined Community Legal
Centres Group – Human Rights and Discrimination Committee, p. 8.
[13] Second reading speech in House of Representatives
Hansard, 8 April 1998, p. 2830.