Chapter 5
Other issues
Renaming of the commission
5.1 The 1998 bill proposed a change of name for the commission, to the
Human Rights and Responsibilities Commission.
5.2 The change reflected the government's policy of refocussing the functions
of the commission on educating “Australians about human rights and
discrimination, and to help them understand their responsibility, as members
of the Australian community, to respect other people's human rights”.
[1]
5.3 This name change occasioned some concern among the submissions received.
The Law Society of Australia considered the change of name to be unnecessary
[2]. The Women's Electoral Lobby argued that
there would be a cost involved, and also argued that the inclusion of
“responsibility” in the name:
… could lead to assumptions that claims of human rights violations
are made by those who are irresponsible, rather than those who are suffering
disadvantage. This could lead to a situation where people feel they
are unable or unwelcome to use the legislation. [3]
5.4 The Women's Legal Service made the point that:
… it is important for the Commission, as the administrator of
Australia's key anti-discrimination instruments, to retain an express
emphasis on equality and equal opportunity. [4]
5.5 Professor Charlesworth and Associate Professor McCorquodale suggested
that the change in name could be confused with the proposed Universal
Declaration of Human Responsibilities which:
… is a problematic document because it de-emphasises rights and
emphasises the importance of communal stability. Its has been criticised
as offering support for repressive regimes. Although we understand that
the Australian government is not in favour of the Universal Declaration
of Human Responsibilities, the renaming of Australia's major human rights
institution in this way at this time may be seen as implicit support
for the Declaration. [5]
5.6 HREOC itself argued for a change of name, but disagreed with that
selected:
The Commission agrees that the Commission's name should be changed
but is of the view that the suggested title is confusing as it combines
two different aspects of the character of the Commission and does not
assist in explaining the purpose or role of the Commission. Given that
the public, media and even the Government itself refers to the Commission
as the “Human Rights Commission”, the Commission suggests
that the law should reflect the practice. [6]
Conclusions
5.7 While acknowledging the points raised in submissions and by witnesses,
the committee recognises that the naming of the commission is a matter
for government policy.
Recommendation No. 8:
The committee recommends that the provisions of the 1998 bill
concerning the renaming of the commission remain unchanged.
Abolition of Community Relations Council and advisory committees
5.8 Items 23 and 113 of Schedule 1 of the 1998 bill had the effect of
abolishing advisory committees and the Community Relations Council.
5.9 This issue attracted little comment. However, one submission suggested
that it would represent “a further decrease in expertise and resources
that may currently be made available to facilitate the objectives of the
Commission”. [7]
Conclusions
5.10 The committee notes that no members have ever been appointed to
the Community Relations Council and that the commission retains the power
to consult appropriate groups or individuals where required [8].
The committee therefore does not consider that these provisions materially
reduce the capacity for community and stakeholder involvement in the commission's
activities, but rather increases the flexibility of the president and
deputy presidents to establish consultative groups for particular purposes
as and when required.
Recommendation No. 9:
The committee therefore recommends that the provisions of the
1998 bill that abolish the Community Relations Council and advisory committees
remain unchanged.
Prohibition on the delegation of the president's complaint handling
powers
5.11 The 1997 bill centralised the complaint handling powers in relation
to race, sex and disability discrimination in the president of the commission
and prohibited the president from delegating those powers to members of
the commission. However, the president retained the scope to delegate
to the Human Rights Commissioner his or her complaint making power in
respect of breaches of human rights and discrimination in employment.
The 1998 bill extended the prohibition on delegation of certain powers
by the president to also include these powers.
5.12 This extension reflected the government's policy of centralising
all responsibility for complaint handling with the president. [9]
5.13 In its submission, the commission reiterated its opposition to the
prohibition on the president delegating complaint handling powers:
It has consistently been the Commission's view (as was expressed to
the Committee's inquiry into [the 1997 bill]) that the President should
be empowered to delegate complaint handling powers to members of the
Commission and that it is inappropriate to limit the President's discretion
to delegate to anyone, including a Deputy President, that he or she
thinks fit to exercise the relevant power. [10]
During the committee's hearings, the president of the commission, Professor
Tay, raised three objections to this prohibition:
The first one is again a matter of principle. It will limit the judgment
and discretion of the president to delegate as he or she sees fit within
or beyond the commission. …
The second one is a question of the amount of work that is therefore
being laid upon the president under the proposed legislation if the
president can delegate only in a limited sort of way. Thirdly, I think
the limitation also distracts the president from being able to select
delegation on the basis of the best competence available, the best specialisation
of expertise available …
Mrs Diana Temby, the executive director of the commission, added that:
… the commission will have highly qualified deputy presidents
with expertise in certain areas and not be able to, if you like, choose
how those people will be used in the fullest possible way within the
organisation. … it is unnecessarily restrictive.
… I think the view of the commission would be that perhaps the
legislation could specify that, where a deputy president was involved
in handling a complaint, that person was then barred from taking the
amicus role forward. [11]
5.14 Similar concerns about the prohibition on the delegation of the
president's complaint handling powers were raised during the committee's
consideration of the 1997 bill. [12] The committee
then raised those concerns with the Attorney-General's Department. In
response, the department advised that:
… To provide for such delegation would be contrary to the stated
reasons for centralising complaint handling in one office, ie the desire
to ensure a more efficient, effective, and consistent decision making
process. It would also be inconsistent with the proposal to provide
Commissioners with the additional function of appearing as amicus curiae
in later proceedings before the Federal Court. [13]
Conclusions
5.15 The committee notes the earlier advice from the Attorney-General's
Department that:
- proposals to amend the 1997 bill to allow the president of the commission
to delegate complaints to commissioners would be contrary to the goal
of centralising complaint handling in one office in order to ensure
a more efficient and effective and consistent decision-making process;
and
- the delegation of complaints functions to commissioners would be inconsistent
with the proposal that commissioners appear as amicus curiae if
later proceedings are brought in the Federal Court.
5.16 The committee reiterates its conclusions on this matter in its earlier
report on the 1997 bill: that it considers that it is appropriate to separate
the inquiry and conciliation functions to be performed by the president
from the education and amicus curiae functions to be performed
by deputy presidents. This separation of functions will avoid any perception,
real or otherwise, that there is a conflict between the roles of advocacy
and conciliation.
Recommendation No. 10:
The committee recommends that the provisions of the 1998 bill
concerning the prohibition on the delegation of the president's complaint
handling powers remain unchanged.
Removal of the commission's power to recommend damages or compensation
5.17 The 1998 bill also sought to remove the power of the commission
to make recommendations for the payment of damages or compensation following
inquiries into complaints under the renamed Act. The change resulted from
the fact that:
These recommendations cannot currently be enforced in any way because,
unlike in the case of discrimination under the DDA, the RDA and the
SDA, the acts or practices to which these recommendations relate are
not made unlawful under the HREOCA. [14]
5.18 In closing the debate on the second reading of the bill, the Attorney-General
indicated that:
Removal of this function is consistent with the commission being primarily
a forum for the negotiation and conciliation of complaints, rather than
a quasi-judicial forum adjudicating on people's rights. It is also consistent
with the commission's new emphasis on educating and informing people
about their human rights and responsibilities. [15]
5.19 Several submissions expressed concern that the removal of this power
could amount to a breach of Australia's international law obligations.
Although acknowledging that such recommendations are unenforceable at
present, the submission of Australian Lawyers for Human Rights stated
that:
… to the extent that the HREOCA is the only legislation in Australia
which contains a direct remedy for a breach of a “human rights”
[sic], … contained in the International Covenant on Civil and Political
Rights (ICCPR), it is in our view essential that this function not be
watered down any further.
It is also arguable, in our view, that the removal of this function
constitutes a breach of Article 2(3) of the ICCPR. [16]
5.20 Article 2 of the ICCPR provides that a state party to the covenant
undertakes to respect, and to ensure to all individuals within its territory,
the rights recognised in the covenant, without distinction of any kind.
Article 2 also obliges a party to take legislative or other necessary
measures to give effect to the rights in the ICCPR where they are not
already provided for by existing legislative or other measures. Article
2(3) obliges a party to provide any person whose rights under the ICCPR
have been violated with an effective remedy, with the matter to be determined
by a competent authority, and to ensure the enforcement of such remedies.
5.21 When Australia ratified the ICCPR it did not implement the covenant
by legislation, on the basis that existing Australian law provides sufficient
protection for individuals
Conclusions
5.22 The committee acknowledges the concerns raised in submissions. However,
following the decision of the High Court in the Brandy case, the
committee considers that it is appropriate for the commission to shed
this quasi-judicial function of recommending damages or compensation.
5.23 The committee does not consider that the removal of this power to
recommend damages or compensation breaches article 2(3) of the ICCPR.
If the president of the commission (pursuant to the amendments of the
Act contained in the 1997 bill) is unable to conciliate a resolution to
a complaint, a complainant is not precluded from commencing Federal Court
proceedings, seeking an enforceable decision. Under proposed paragraph
46L(4)(d) of the Act (contained in the 1997 bill), the Federal Court may
make an order as to damages by way of compensation for any loss or damage
suffered.
Recommendation No. 11:
The committee recommends that the provisions of the 1998 bill
relating to the removal of the commission's power to recommend damages
or compensation remain unchanged.
Appointment and terms of persons over the age of 65
5.24 The committee notes that the provisions relating to the appointment
and terms of persons over the age of 65 attracted little comment.
Recommendation No. 12:
The committee recommends that the provisions of the 1998 bill
concerning the appointment and terms of persons over the age of 65 remain
unchanged.
Senator Marise Payne
Chair
Footnotes
[1] Attorney-General's second reading speech
in House of Representatives Hansard, 8 April 1998, p. 2830.
[2] Submission No. 22, Law Society of Australia,
p. 1.
[3] Submission No. 7, Women's Electoral Lobby,
p. 2.
[4] Submission No. 19, Women's Legal Service,
p. 1.
[5] Submission No. 9, Professor Hilary Charlesworth
and Associate Professor Robert McCorquodale, p. 2.
[6] Submission No. 11, Human Rights and Equal
Opportunity Commission, p. 9. This name was also suggested by Submission
No. 9, Professor Hilary Charlesworth and Associate Professor Robert McCorquodale,
p. 2.
[7] Submission No. 19, Women's Legal Service,
p. 2.
[8] Explanatory memorandum to Human Rights Legislation
Amendment Bill (No. 2) 1998, p. 9, paragraph 40 and p. 24, paragraph 159.
[9] Explanatory memorandum to Human Rights Legislation
Amendment Bill (No. 2) 1998, p. 9, paragraphs 42 – 44.
[10] Submission No. 11, Human Rights and Equal
Opportunities Commission, p. 8.
[11] Legal and Constitutional Legislation Committee
Proof Hansard, 28 July 1998, p. 6.
[12] See Senate Legal and Constitutional Legislation
Committee, Report on the Human Rights Legislation Amendment Bill 1996,
pp. 15-18.
[13] Correspondence dated 22 April 1997 from
the Attorney-General's Department to the committee, p. 4.
[14] Explanatory memorandum to Human Rights
Legislation Amendment Bill (No. 2) 1998, p. 10, paragraph 50.
[15] House of Representatives Hansard,
30 June 1998, p. 5694.
[16] Submission No. 10, Australian Lawyers
for Human Rights, p. 3. See also Submission No. 2, Combined Community
Legal Centres Group – Human Rights and Discrimination Committee,
p. 6; and Submission No. 6A, Refugee and Immigration Legal Centre, p.
7.