Human Rights and Equal Opportunity Commission
Annual Report 2001-2002
Statement from the President
The Human Rights and Equal Opportunity Commission occupies a unique place in Australian society. It sits independent of Government, yet it is not what is traditionally known as a non-government organisation (NGO) or an advocate.
In fact it is a statutory authority responsible for ensuring the observance of human rights in Australia. The Commission seeks to promote an understanding and acceptance of human rights in Australia; undertakes research to promote human rights; investigates and attempts to conciliate complaints about breaches of human rights or of equal opportunity laws; intervenes or acts as amicus curiae in important legal cases that may affect the human rights of people in Australia; examines laws related to human rights; and provides advice to government on laws and actions that are required to comply with international human rights obligations.
While the core functions of the Commission remain unchanged, I would argue that the Commission over the past year has devoted most of its energy to legal work, its education role and, for Commissioners, to engaging in public debate via the media and other avenues on key human rights issues in Australia. I wish to praise in particular the work of Commissioners on major policy initiatives including paid maternity leave, children in detention and social justice and native title issues.
Education about human rights and discrimination - including the development of school-based education programs - has been central to the Commission's activities.
Another of the Commission's core functions is the conduct of national inquiries on important human rights issues and the National Inquiry into Children in Immigration Detention is still in progress at the time of writing.
The loss of the public hearing function in April 2001 (when amendments to the Human Rights and Equal Opportunity Commission Act took effect) produced a change of focus for the Commission from determining complaints to conciliation of complaints. Complaints unable to be conciliated by the Commission are now terminated and can be taken to the Federal Court of Australia or Federal Magistrates Service.
The success of the Commission's transition to this new role is detailed in the Complaint Handling chapter of this Report. Parties to complaints remain willing to embrace conciliation and 30 percent of the matters finalised last year were successfully conciliated. Eighty eight per cent of complaints were finalised within 12 months of lodgement.
There was some public debate and consternation about the change of jurisdiction for the hearing of human rights complaints when the legislative changes were mooted and when they came into effect. An analysis of the impact of the changes over the past 18 months is expected to be available by the end of 2002.
The Commission believes that all children in Australia deserve to have accurate information about the nature of human rights and social responsibilities for them and about discrimination laws.
Over the past year, the education function of the Commission has received unprecedented attention and the Commission, with relatively limited resources, has managed to develop a comprehensive education program for schools.
The Commission's Youth Challenge program - which in the past has involved day long workshops, mainly on discrimination issues - has been expanded and is now more heavily reliant on the Internet. The program was short listed for The Australian's 2002 Awards for Excellence in Educational Publishing.
The Commission's Public Affairs Unit has consulted widely with teachers and students and conducted surveys on its electronic mailing lists to obtain feedback. Promotion has been via advertisements in teachers' journals, posters and postcards and direct contact with all secondary schools. Website statistics indicate large numbers of people are accessing the Youth Challenge online materials.
I launched the first online Human Rights Education "Youth Challenge" program in December 2001. Since then, the Commission has restructured its website to provide to teachers a range of material for teaching human rights and responsibilities. The Public Affairs Unit is also developing discrete teaching modules on current issues. The first was on the Stolen Generation and linked to the 2001 movie Rabbit-Proof Fence, based on Doris Pilkington's book. A further module on paid maternity leave and other issues about work and family was being developed towards the end of the financial year and others are planned.
In relation to legal action, the Commission can act as amicus curiae or "friend of the court" and can intervene in relevant cases. The Commission has had a function of acting as an Intervener in certain court proceedings since the Human Rights and Equal Opportunity Commission Act commenced in 1986, but the amicus curiae role given to each individual Commissioner only came into effect in April 2000.
The Commission's role in legal proceedings, as an intervener or an amicus curiae, cannot be under estimated. Decisions to seek leave to appear before the court - usually the Federal Court of Australia or High Court - to take part in the proceedings are not taken lightly. They are subject to due deliberation by Commission members and sometimes decisions are made under extreme time pressure.
The Commission has also been careful to choose proceedings involving issues of public importance which may effect to a significant extent persons other than the parties before the Court. With the Court's permission, the Commission can intervene in proceedings involving any human rights issues; i.e. human rights as defined in six named International conventions; in proceedings involving discrimination in employment or occupation; and in race, sex, marital status, pregnancy or disability discrimination matters.
During the past year, the Commission has intervened in a number of cases with substantial human right's implications, including the controversial and highly politically-charged case involving the Merchant Vessel Tampa carrying 433 asylum seekers to the Australian Territory of Christmas Island.
The Commission's decision to intervene in the "Tampa" case was conducted in an atmosphere that was political and emotionally volatile and in which firsthand knowledge of the asylum seekers' plight and circumstances was unobtainable. It is important in circumstances such as the "Tampa" case that the Commission continues to support legal avenues to ensure that people's human rights are protected. It is important, too, for there to be recognition that the Commission does not act as a barometer of public opinion; that human rights are universal and immutable and not a commodity.
The Commission's arguments in the "Tampa" case, which can be found on the website and are referred to in more detail in the legal chapters of this report, were heard in the Federal Court of Australia (before Justice North), in the Full Federal Court and the High Court.
Last year the High Court granted leave for the Commission to intervene in what became known as the "Catholic Bishops" or "IVF" case about the provision of reproductive assistance technology to single mothers. The Commission welcomed the outcome of that litigation which enabled single women to receive IVF in Victoria. The Federal Government has foreshadowed amendments to the Act. However, the Commission will oppose such amendments and argue against any attempts to undermine the Sex Discrimination Act.
Other cases in which the Commission has intervened include:
- Family law proceedings including the validation of the marriage of a female to a male transsexual person (the "Kevin and Jennifer" case).
- Immigration cases including access by people in detention to legal representation, the legal guardianship arrangements for unaccompanied minors and the detention of criminal deportees who had served their sentences. The Commission also intervened in a case involving the legal validity of a provision of the Migration Act that purports to restrict certain matters from review by Federal and High Courts (the "privative clause" case, which relates to the extent to which administrative decision makers are obliged to take account of human rights instruments in making their decisions).
- Native title cases including the "Yorta Yorta" case.
To date, only the Sex Discrimination Commissioner has acted as amicus curiae - in Ferneley v Boxing Authority of NSW and State of NSW. In that case, the court accepted that the proceedings had significant implications for the administration of the Sex Discrimination Act and it was in the public interest for the Commissioner to act as amicus curiae. It is hoped that exercising this role will assist with the development of a body of anti-discrimination jurisprudence and assist parties to focus on the issues and ultimately resolve the dispute.
The Commission continues to play an active role in the promotion of human rights internationally especially in providing technical assistance and expertise to new and emerging national human rights institutions.
One of the Commission's major projects is the China-AustraliaHuman Rights Technical Cooperation program which falls under the Australia-China Human Rights Dialogue, a government to government program initiated in 1997. The program focuses on three broad areas - legal reform and the administration of justice, women and children's rights and ethnic and minority rights. In 2001-02 activities included the training of prison officers, a workshop to design a training course for judges, a domestic violence workshop and a project to assist women's groups in two provinces to combat trafficking in women and children.
I was also invited to join the inaugural session of the Australia-Vietnam Dialogue on International Organisations and Legal Issues, conducted in May 2002, which I hope will develop into a full, constructive dialogue similar to the program involving China.
The Commission's formal assistance program with Komnas Ham, the Indonesian Human Rights Commission, concluded this year but the support of the Indonesian and Australian Governments suggest that there will be further cooperation between the two countries.
The Asia Pacific Forum of National Human Rights Institutions, of which the Commission is a founding member, admitted Mongolia to its membership at the sixth annual meeting in Colombo, Sri Lanka. The incorporation of the Forum as an independent entity (it currently has a secretariat based in the Commission's office in Sydney) happened in March 2002.
The Commission currently has three Commissioners acting in five statutory roles - including Dr William Jonas (Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner); Dr Sev Ozdowski (Human Rights Commissioner and acting Disability Discrimination Commissioner) and Ms Pru Goward (Sex Discrimination Commissioner). Legislation intended to change the structure of the Commission to create three deputy presidents is still before the Federal Parliament.
Activities of the Commissioners over the past year are highlighted in their own statements throughout the Annual Report. Suffice to say, they have been actively engaged in public debate about human rights issues through the media, through publications, presentations and speeches, in addition to their policy work.
Major policy initiatives and activities during 2001-02 included a national push for paid maternity leave, a year long process to raise awareness of racism (including participation in the World Conference against Racism in Durban in September 2001 and a host of related domestic activities) as well as a National Inquiry into Children in Immigration Detention.
The National Inquiry has the potential to have as big an impact on our understanding of the situation for children kept in Australia's detention centres as the "Stolen Generation" report had on our understanding of the removal of Indigenous children from their families.
In the area of disability discrimination, the Commission hosted a summit of peak disability groups in December 2001 and has been a key player in developing standards for accessible public transport and has continued liaison with industry groups, government and disability rights organisations to improve accessibility across other areas.
Following the launch of her options paper on paid maternity leave "Valuing Parenthood" Ms Goward embarked on an extensive public education campaign and a series of meetings with key organisations including employer and employee groups and social policy demographers.
Over the past year, Dr Jonas has questioned the direction of the reconciliation debate, making the issue of progress towards reconciliation the central issue of his 2001 Social Justice and Native Title Reports. In his reports, Dr Jonas expressed serious concerns about the nation's progress in recognising and respecting Indigenous rights and called for a Senate inquiry to examine the documents produced by the Council for Aboriginal Reconciliation and the recommendations of the Social Justice Report 2000.
Some major challenges facing the Commission in the year ahead arise from the repercussions of the September 11 terrorist attacks in the United States and the worldwide movement of populations, many of them asylum seekers, which have been felt in Australia.
External threats - whether real or imagined - have the potential to compromise the rights of people within a nation under the guise of protecting national sovereignty. In 2001-02, the federal Government passed laws aimed at limiting access to the Australian mainland and the refugee processing system and to introduce more rigorous procedures for detecting terrorist and other security threats. The Commission has commented on the human rights and international law implications of changes to the Migration Act and proposed amendments to the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 and related bills pointing out the potential for breaches of human rights.
The Commission will continue to monitor implementation of such laws and their impacts on the human rights and freedoms of the people of Australia.
It is precisely at such times - when a nation expresses fears of vulnerability - that the rights of the truly vulnerable are in danger of being brushed aside. It is also a time when the general population may agree to a "lowering of the bar" of rights and freedoms in exchange for other benefits. At such times, the role of an independent national human rights institution, operating without fear or favour, is crucial.
