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A lame watchdog?


Cite as: (2003) 77(8) LIJ, p.31

Proposed legislative changes put the effectiveness of the Human Rights and Equal Opportunity Commission at risk.

For 17 years the Human Rights and Equal Opportunity Commission (HREOC) has helped to redress the disadvantage that results from discrimination and other infringements of human rights.

Often those least able to protect their rights are also those whose rights are most often infringed.

HREOC assists people who have a limited capacity to access legal processes. Many people who use this vehicle have no other option and limited resources.

The proposed Australian Human Rights Commission Legislation Bill 2003 – which includes a number of changes to the existing legislation governing HREOC – is therefore of great concern to the Australian Council of Social Services (ACOSS) and others.

The Bill, if passed as is, will have the effect of compromising Hero’s independence and powers.

ACOSS’ key concerns are:

  • the proposed limits to Hero’s power to intervene in court proceedings;
  • the reduction in the number of commissioners and the abolition of specialist commissioners; and
  • the loss of Hero’s power to make recommendations for money compensation.

Limiting the power to intervene in court proceedings

Under the proposed Bill, HREOC will need to seek the Attorney-General’s permission before intervening in court proceedings, weakening Hero’s power by impairing its ability to apply to intervene as “friend of the court”.

Given the number of court cases involving the Commonwealth as a party to matters, there is an apparent conflict of interest for the Attorney-General, as a member of the government, to be the arbiter as to whether HREOC should apply to intervene in cases or not. This would appear to be contrary to rules of natural justice and procedural fairness and contradicts the “Paris Principles”[1] that set standards by which national human rights institutions should operate. Decisions about intervention in court proceedings should remain at the discretion of courts which are independent of the government of the day.

In all likelihood the practical effect of this provision is that the courts would be denied, in some instances, the benefit of the expert assistance of HREOC. The court is the best entity to determine which parties should be given leave to appear.

Reduction of commissioners and abolition of specialist commissioners

Taken together, these proposed changes pose a serious threat to the effectiveness of Hero’s work. If passed, the result would be fewer commissioners, with those remaining having a broader range of human rights areas to cover – a kind of “no name/no frills” outcome.

Specialist commissioner positions are important for a number of reasons. They reflect the real and all too common characteristics of human rights infringements – often based on discrimination associated with sex, race, culture and disability.

These matters require special skills, know ledge and understanding built up over time.

Specialist commissioners provide a public point of identification for individuals and for communities of interest such as population-specific community organisations, academics and researchers, and specialist lawyers.

Proposed loss of power to recommend compensation

The proposal to deny HREOC the power to recommend compensation arising from its deliberations reduces the likelihood that the commonwealth government would provide compensation in relation to its own activities.

Discrimination and human rights infringements can and do contribute to loss of income and almost always lead to distress for individuals that might reasonably be the subject of compensation.

Compensation recommendations provide some pressure for entities that discriminate and infringe human rights to prevent and address such unacceptable actions.

Removing HREOC’s power to recommend compensation can leave complainants with no choice but to pursue Federal Court relief. This course would leave low-income people particularly disadvantaged.

Proposed centrality of “education”

The Bill proposes that HREOC’s central role in education be prescribed by legislation. HREOC’s role in performing community education activities around human rights is an important one and is best achieved through budgetary provisions.

In the absence of such commitment it is difficult to avoid the conclusion that the legislated provision would result in fewer resources for the important complaints, court intervention and consultation work of HREOC. These activities contribute to community education as do other explicit HREOC community education activities.

It should also be noted that HREOC community education functions are enhanced by having specialist commissioners who act as a high profile focus for community education in the specific areas of sex, disability, race and indigenous people.

It is essential that Australia has an effective and independent national human rights institution to protect and advance the rights of all citizens. It is anticipated the proposed Bill will come before the Senate later this year. ACOSS urges the Senate to view it in the context not only of international instruments, legal tradition and practices but also of the actual human condition.

This text is taken from the ACOSS SUBMISSION to the Senate Legal and Constitutional Committee Inquiry into the Provisions of the Australian Human Rights Commission Legislation Bill 2003.

[1] At a 1991 UN-sponsored meeting of representatives of national institutions held in Paris, a detailed set of principles on the status of national institutions was developed – these are commonly known as the Paris Principles. These principles, subsequently endorsed by the UN Com mission on Human Rights and the UN General Assembly have become the foundation and reference point for the establishment and operation of national human rights institutions. In summary, the key criteria of the Paris Principles are independence guaranteed by statute or constitution, autonomy from government, pluralism, a broad mandate based on universal human rights standards, adequate powers of investigation and sufficient resources.


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