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Thursday, 25 March 1999
Page: 4368


Mr McCLELLAND (9:58 AM) —The opposition will be opposing the second reading of the Human Rights Legislation Amendment Bill (No. 2) 1999 . The Attorney-General, in his second reading speech, which he gave on 17 February of this year, spoke very briefly indeed, less than half a page of Hansard . He made three points. He said:

The bill provides for the reorganisation of the commission's membership . . .

That is, the membership of the Human Rights and Equal Opportunity Commission. He said:

Most importantly, this bill will be the catalyst for a fundamental cultural change . . .

This cultural change will be to shift the emphasis to one which is educative. He continued:

This refocusing of the commission's functions is reflected in its new name—the Human Rights and Responsibilities Commission.

Consistent with this cultural change the bill will make the commission's power to intervene in court proceedings which raise human rights issues conditional upon it first obtaining my approval.

Our reply will address substantially those issues put forward by the Attorney-General as justification for this proposed legislation. But before I do so I would like to point out the atrocious human rights record of this government. The Human Rights and Equal Opportunities Commission has been financially decimated by this government. There is no other word for it. HREOC's budget has gone from $21.6 million in 1995-96 to $20.5 million in 1996-97 to $18.2 million in 1997-98 and $12.3 million in 1998-99. As if that were not good enough, it will have an average budget of only $10.6 million in the next three years. In real terms the budget has been cut by an average of $13 million per year, or a staggering 55 per cent. In real terms HREOC is now receiving $57 million less per year than if the 1995-96 levels under the previous government had been maintained.

In addition to that, the government's record on human rights in its very short time in office has become internationally condemned. All Australians will recall the disgrace in the government's failure to reappoint Sir Ronald Wilson as a Human Rights Commissioner. There is no doubt that failure to reappoint was substantially motivated by Sir Ronald Wilson's role in the preparation of the stolen children report. Indeed, there has been speculation that the restructuring of the commission proposed in this bill has resulted from fearless criticism by not only Sir Ronald Wilson but also other independent commissioners of this government's policies.

From an international perspective, in an unusual move, the United Nations Committee on the Elimination of All Forms of Discrimination Against Women expressed their concern about the delay in appointing a sex discrimination commissioner following the resignation of the former commissioner in February 1997. On 18 March, just this month, the Committee on the Elimination of All Forms of Racial Discrimination strongly condemned the government in relation to amendments to the Native Title Act and also these proposed changes to the structure of the Human Rights and Equal Opportunity Commission including, in particular, the abolition of the position of Aboriginal and Torres Strait Islander Social Justice Commissioner and assigning those functions to a non-specialist deputy president.

Also there have been criticisms by the International Labor Organisation of this government, and there has indeed been criticism of failure to comply with the Convention on the Rights of the Child. All in all, this government has an atrocious human rights record. Yet in a press release on 11 March this year the Attorney-General said that the Australian government takes its international obligations seriously. Regrettably, the Attorney-General's comments must be taken to be only words, and those words are not backed up by what this government has done and clearly is attempting to continue to do in respect of this bill.

Moving on to address the major amendments to this bill, firstly, there is a symbolic name change from the Human Rights and Equal Opportunity Commission to the Human Rights and Responsibilities Commission. The government has failed to give justification for changing the name. It says it is part of a desire to focus upon this more educative function. The reality is otherwise. As the editorial in the Age newspaper on 29 September 1997 said:

To those familiar with the Government's tense relationship with the Commission the new emphasis sounds like an attempt to pull the Commission's teeth . . . education in human rights is important, but the Commission educates chiefly by example— specifically by vigorous prosecution of rights violations. Its pursuit of such violations has often irked the present government.

That is an independent commentator, the editor of the Age newspaper.

Keith Suter, the Convenor of the Human Rights Committee of the International Law Association, suggested that the government's name change is simply a gimmick—and it is difficult not to agree with him. The whole tenor of the name change indeed suggests that we should regard human rights as privileges that must be tempered by responsible action on the part of those who have been discriminated against or victimised. That view espoused by the government is entirely consistent with an ignorant view that can sometimes surface in the community such as that revealed by the One Nation party who seem to convey the impression that those who are disabled, discriminated against or victimised are, in some way, in breach of an obligation to the rest of the community to live up to the obligations that the community feels they owe to the rest of Australia.

In other words, this change of focus to human rights and responsibilities is very much part of the government's scapegoating or wedge politics. For example, what responsibility do Aboriginal children have for the fact that life expectancy for Aboriginals is 20 years less than non-Aboriginals? Aboriginal boys born today have only a 45 per cent chance of living to the age of 65; non-Aboriginals have an 85 per cent chance. Aboriginal girls have a 54 per cent chance of living to that age whereas non-Aboriginal girls have an 89 per cent chance of living till the age of 65. The infant mortality rate among Aboriginal children is three times as much as the general community.

What responsibility do they have for the fact that their water supplies are inadequate and that the health services provided to them are inadequate? Do they have a responsibility for that fact? Do the disabled in wheelchairs trying to get access to a building without stairs have a responsibility to get off their wheelchairs and carry them up the stairs? Does a father who sees his child, his son or daughter, miss out on a job simply because they have an Arabic name have a responsibility to quell the disappointment that that child feels? Those events still occur in this community. This government has failed to demonstrate why it needs to shift into that concept of `responsibility'.

The government has proposed to restructure the commission, as I have indicated, by reducing the current five specialist commissioners to an Executive President and three deputy presidents. How will this achieve a supposedly new collegiate or more efficient approach with appropriate delegation of responsibilities to areas of expertise? The specialists will be gone. One presumes that the hidden agenda is more that the Executive President can attempt to exercise some restraint on the fearless voice that has otherwise come in the past from the specialist commissioners.

Second, in respect to abolishing specialist commissioners, the government has overlooked the fact that different forms of discrimination manifest themselves in radically different ways and resolving disputes requires a considerable depth of understanding of the particular issues involved in that discrimination. The government has literally thrown that expertise out as a result of doing away with specialist commissioners.

Third, on this point, the loss of the specialist commissioners will unquestionably undermine the symbolic importance and visibility that the current specialist commissioners have, much to the chagrin of the government. This is particularly concerning in respect of the merger of the Disability Discrimination Commissioner and the Human Rights Commissioner and also the Race Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner. In fact, the phrase `Aboriginal and Torres Strait Islander' does not even appear in the specific responsibilities of the deputy president.

These actions of the government's proposed restructure have been the subject, again, of independent criticism, not just opposition criticism. For instance, the Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Ms Zita Antonios, said:

I believe unequivocally that the office of Aboriginal and Torres Strait Islander Social Justice Commissioner should be held by an indigenous person. It is only in the absence of such an appointment and with the support of Mick [Dodson] and other Indigenous people that I have taken up the position in order to keep the office alive and active at this time of particular need.

The Acting Disability Discrimination Commissioner, Mr Chris Sidoti, who has performed an admirable job, also criticised the government's moves. He said:

The loss of a specialist position devoted solely to disability discrimination issues comes only five years after the enactment of the Disability Discrimination Act 1992 and the establishment of the position. Much has been accomplished during those five years but equality, for Australians with a disability, remains at best unfinished. The case for maintaining the specialist position remains compelling.

That is at a local level with experts involved face to face with people suffering from disabilities, suffering from underresourcing and suffering from neglect—really the most downtrodden members of our community. Those people have had the courage to voice their concerns. But, also at an international level, on 18 March this year, as I said, the United Nations Committee on the Elimination of Racial Discrimination concluded in respect of this aspect of the government's legislation:

The Committee strongly encourages the State Party to consider all possible effects of such a restructuring, including whether the Deputy President would have sufficient opportunity to address in an adequate manner the full range of issues regarding indigenous peoples warranting attention. Consideration should be given to the additional benefits of an appropriately qualified specialist position to address these matters, given the continuing political, economic and social marginalisation of the indigenous community in Australia.

That is, those who are suffering from those health and life expectancy deprivations that I have already referred to. So we have not only politicians and independent editors but also independent commissioners and, indeed, an international human rights body criticising this action on the part of the government.

The next aspect that I will speak of is the Attorney-General's statement that the purpose of the commission will be to make education the commission's new priority. Indeed, it will have a role, according to the Attorney-General, of assisting business understand those obligations. While education unquestionably does provide an important role, it does not provide immediate protection for the most vulnerable in our society.

The government has failed to understand entirely that the highlighting of individual examples or the plights of groups of people is the most profound and the most effective way of demonstrating in reality how discrimination and victimisation is occurring in actuality in our society. The suggestions that the reforms will enhance the ability of the commission to undertake an educative role are quite simply rubbish. They are rubbish for many reasons, but one reason stands out above all—that is, the massive decimation of the financial capacity of the commission.

In 1995-96, under the previous government, the commission spent almost $595,000 on community and public education campaigns. In the first year of the government, that was reduced to $539,000. This year it will be reduced to $425,000. In other words, the commission's education budget has been cut by 28.5 per cent. At the same time, the commission still has its statutory obligation to perform its dispute resolution role.

The government's sincerity about education is proven to be a sham entirely. Indeed, the government's lack of sincerity about educating the community about issues of discrimination is demonstrated by the supposed campaign against racism. Members will recall that, three years after such a campaign was promised and two years after the former member for Oxley made her infamous speech in this House, an intention was announced by the government to spend over $10 million over two years on an antiracist campaign. In the 1996-97 budget, that was reduced to $5 million over one year and reduced in 1997-98 to $4.5 million. Indeed, the campaign was not funded in the 1998-99 budget at all.

Instead of educating Australians, the campaign was effectively an attitude survey undertaken by the government, and it amounted to no more than push polling which itself, in the questions asked of Australians, peddled racially discriminatory stereotypes. So the government's claim that it wishes to educate Australians about the need to respect other Australians' human rights is hollow.

I congratulate the Age newspaper for pursuing these issues. It is a fundamentally important role of an independent press to publicise what is happening to the most downtrodden, the most neglected, members of our community. On 31 July 1997, they said that the government's `cultural shift':

. . . amounts to a sidelining of the Commission by a Government that does not want watchdog agencies to frustrate its agenda. The fact is that the Commissioners have regularly crossed swords with the Government on key areas of policy . . . it is obvious why the Government might be irked at being constantly reminded of things that it should not do but that is what a body such as the Human Rights and Equal Opportunity Commission is for . . . when . . . Government's act to trim the Commission's powers . . . it is the quality of Australia's democracy that suffers.

I repeat that: it is the quality of Australia's democracy that will suffer if this bill is passed through the parliament. That, indeed, comes on to the next phase—and it is something which causes fair-minded Australians outrage—and that is the fact that, if this bill is passed, the Attorney-General will supervise the ability of the commission to engage in litigation. The Attorney-General has imposed that unprecedented restriction on what has been an independently operating commission to seek leave to intervene in federal court proceedings to assist the court in comprehending issues relating to human rights.

No other instrumentality has any similar control attached to it. There is no evidence whatsoever that the commission has misused any of its powers. It has never been refused intervention by a court to which it has applied. And, indeed, the Federal Court of Australia has on numerous occasions gone out of its way to thank the commission for its helpful submissions.

The Attorney-General said in his second reading speech that this gatekeeper role will enable him to ensure that the commission operates in `the best interests of the Australian community as a whole'. But, again, he fundamentally misconstrues the role of an independent human rights commission. It is not the role of that commission to administer government policy or, indeed, to act in a way which is in the interests of `mainstream Australians'—to use the Prime Minister's oft quoted phrase. Indeed, as I have repeated in this speech, it is the most downtrodden, victimised and discriminated against who invariably do not fall within the Prime Minister's concept of `mainstream Australians'.

In other words, the very fact that these persons are exceptions to the mainstream frequently is the reason why they are victims of discrimination. So to say that this gatekeeper role is being performed in the interests of Australians as a whole or in the interests of those who fit into the Prime Minister's concept of `mainstream Australians' simply defeats the purpose of having an independent watchdog. There is no doubt that human rights can be protected in this community only by an honest, high-minded and fearless guardian, and this government is effectively destroying the role of the Human Rights and Equal Opportunity Commission to act in that capacity as guardian of the rights of Australians—the most vulnerable Australians which we in this House have a fundamental obligation to protect.

Indeed, it is not surprising that, in their Senate committee report on the government's proposed legislation, government senators themselves—Senators Coonan, O'Chee and Payne—strongly criticised this aspect of their own government's bill. They said:

The changes proposed may well give rise to a conflict of interest and be perceived by the community as compromising the independence of the commission. At the same time the changes impose an administrative procedure to be observed. The committee is also concerned that the proposed legislation contains no accountability or review provisions to make the decision making process transparent, predictable and reviewable.

That is the comment of three government senators in respect of their own government's legislation. I do not know the background of Senators O'Chee and Payne as well as I do that of Senator Coonan, who is respected as an extremely competent lawyer and a fair-minded person. It is a shame that those views have not prevailed in respect of this legisla tion. The three senators went on to say that the government should reconsider what it is doing this respect.

The government's motives are revealed, this gatekeeper role is revealed, when one considers some of the cases in which the Human Rights and Equal Opportunity Commission has intervened and successfully sought leave. They include the Hindmarsh Island Bridge case, the Teoh case and the B & B Family Law case. In each of those cases the commission made submissions that were fundamentally different from those which were made by the government of the day. But that is their role. And, indeed, we cannot forget that it is frequently the government of the day that is the greatest oppressor of human rights.

Bear in mind that the whole concept of human rights came to the fore internationally after the Second World War with the Universal Declaration of Human Rights arising from the atrocities and abuses of human rights that occurred in the period leading up to the war and during the war. Can we imagine what would have happened if the Attorney-General of Hitler's government had a gatekeeper role? If there had been such a creature as the Human Rights and Equal Opportunity Commission, what leave would that commission have been given to intervene in the apprehension of Jews and the sending of them to concentration camps? If there had been a Human Rights and Equal Opportunity Commission or Committee at an international level, what would they have said of Japan's incarceration of prisoners of war and the allocation of them to slavery?

All of these are fundamental principles. We are living in a time when there is relative democratic stability in this country. But the principle of fundamental rights cannot be taken away, as this government is indeed doing. You have to have the institutions search for the traumas that can occur in society. Another famous lawyer, Charles Hughes, the President of the American Bar Association, speaking to that association on 2 September 1925, said:

The interests of liberty are peculiarly those of individuals, and hence of minorities, and freedom is in danger of being slain at her own alter if the passion for uniformity and control of opinion gathers head.

That is precisely what this is about. This is precisely so that the Attorney-General can control and impose a uniformity of opinion on that which he allows through the gate. As I have said, that action is grossly offensive to the Australian people. It is a gross breach of the fundamental human rights of the Australian people, and the Attorney-General personally should be ashamed if he is responsible for the legislation. If others are responsible, they should certainly review what they are talking about.

The other point in the bill which gives us concern is the limiting of the commission's ability to award damages. It is said that that is necessary because of the Brandy decision which found that the Human Rights and Equal Opportunity Commission cannot exercise at the same time administrative and judicial power. Nonetheless, the mere fact that in conciliation proceedings it had the ability to make a recommendation for the payment of damages at least provided an opportunity for someone who had been discriminated against or victimised to obtain compensation. That will no longer be a possibility unless the person has sufficient resources to take their action to the Federal Court of Australia and pay a $500 filing fee, together with all the legal costs. So effectively the ability to obtain damages has been taken away from most Australians, other than those of means.

Another concern is the abolition of the Community Relations Council, which was established under the Racial Discrimination Act to provide community input into the development of policies in the human rights area. While that facility has not been utilised, the mere fact that it exists provides a far more appropriate mechanism to feed into the role of the Human Rights and Equal Opportunity Commission the views of the community—whether they be business people, unions, Aboriginal and Torres Strait Islander groups or disability groups. That is a useful mechanism whereby the views of the community could be received, as opposed to what the Attorney-General, for instance, will now regard as being in the interests of mainstream Australians.

Another matter which the opposition has spoken on with respect to the human rights No. 1 bill was the prohibition on the delegation of the president's complaint handling powers. We say that is short-sighted in the extreme. I have touched on this issue in the context of the abolition of the specialist commissioners. We say that the prohibition on delegation is short-sighted because there will be other commissioners who do have the expertise and experience to make the prospect of obtaining a satisfactory settlement of a discrimination or victimisation issue more likely.

The opposition has very grave concerns about this legislation. They are fundamental concerns about this government's human rights record and its lack of sincerity in voicing an intention to address human rights issues in the community which is totally lacking when substance is looked at. It is a situation which is now causing not only great injustice in the Australian community, but also severe embarrassment internationally, because there is no doubt that Australia has breached and is continuing to breach its fundamental human rights obligations.

When the reports come in from those international committees examining Australia's conduct, the government criticises the messenger and attacks the make-up of those human rights committees or the message that they have received. In the case of the government's native title legislation, which was criticised on 18 March by the Committee on the Elimination of All Forms of Racial Discrimination, the government criticised that committee despite the fact that the committee gave precisely the same advice to the government that it had received from its own lawyers and, indeed, own General Counsel, by way of advice dated 25 July 1997. So the government is shamefully hypocritical in turning its back on that international voice.

It is extremely short-sighted, because we live in a region where there are a number of poor countries around us. If we, as an industrialised and sophisticated nation, do not ourselves show concern for human rights within our own borders, how can we expect the rights of those citizens who exist in countries around us to be fostered? If those rights are not fostered—as the United Nations realised after the Second World War—they are a source of grievance, they are a source of conflict, and they are a source of instability in our region. So this government is short-sighted in the extreme in the approach it has taken to Australia's human rights record, both from the point of view of the victims of abuse of human rights and from the point of view of our democratic system and the interests of Australia as a whole.