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Monday, 20 September 1999
Page: 8354


Senator GREIG (1:18 PM) —The Human Rights Legislation Amendment Bill (No. 1) 1999 is the first piece of legislation which I have carriage of as the Australian Democrats spokesperson on law, justice and human rights. As honourable senators will now realise, one of the central planks on which the Australian Democrats was founded was the respect and promotion of human rights. In my capacity as the Democrats spokesperson on law, justice and human rights, I look forward to continuing a role—it is what we may now modestly call a tradition—in the Senate of representation and emphasis on human rights.

I wish to begin my contribution today by quoting from the statements made by my colleague Senator Murray in 1996 when the Human Rights Legislation Amendment Bill 1996 was considered by the Senate Legal and Constitutional Legislation Committee. Back then Senator Murray had this to say in the minority report:

The modern principles of democracy have long abandoned the simple notion that the mandate of the ballot box, legitimises all government action. Democratic principles also require the respect for human rights and the protection of minorities against the possible coercive and oppressive power of the majority, the powerful, the wealthy or just simply the strong. It is what distinguishes democratic and relatively free nations from that of oppressive and tyrannical ones. It is in essence, a system of checks and balances on the potential abuses of any government or any sector of the community against a vulnerable group in the community that we are talking about.

At a national level at least, it has been recognised that equality should be afforded to persons regardless of their gender, race or disability. The Australian Democrats believe that this protection should be extended to that of sexuality and age in the immediate future.

I would like to add my support to those sentiments expressed by my colleague Senator Murray no less than three years ago. There could be no greater example of those sentiments expressed by Senator Murray three years ago than the human tragedy and political malevolence that has unfolded in East Timor. Australia need only now look at our nearest neighbour to see the consequences of democracy stifled and human rights denied. If for no other reason—but, for some, many reasons—East Timor and its courageous people exemplify why, in comparatively peaceful Australia, we must be ever vigilant and never complacent about the state of human rights in our own country.

While it is true that the Human Rights and Equal Opportunity Commission performs many functions under its foundation legislation, no function is as important as its capacity to receive, manage and process complaints of human rights violations. To a large extent, it is the capacity to resolve the conflict of human rights with human behaviour that is at the core of what this commission is all about.

In 1996 the Attorney-General in his second reading speech outlined the practical implications of the 1995 High Court's Brandy decision. There has now been four years of effective constitutional deadlock with that decision paralysing the present structures of the commission. This deadlock is not merely an administrative one; it goes to the core of that central function that is the human rights commission's existence—to enforce decisions concerning the abuse of human rights and to see that ultimately a form of justice prevails.

Antidiscrimination law, human rights law or its other manifestation of equal opportunity law is necessary in Australia because not everyone is equal in this country. While the pretences of working-class equality have pervaded Australian mythology, the experience for Aboriginal and Torres Strait Islanders, people with disabilities, women, the young and people in the gay and lesbian community has been anything but equal. Since 1975 we as a nation have acknowledged through this parliament that no-one should be disadvantaged on the grounds of their race.

In 1986 the Human Rights and Equal Opportunity Commission was established as Australia's human rights watchdog. If our democracy is to continue to function, we should—and I emphasise `should'—place great emphasis on institutions and organisations which monitor and protect human rights. Would anyone doubt the valuable work and the contribution that organisations such as Amnesty International have made in alerting the world about, and then coordinating action against, nation states which, for undemocratic motives, abuse the human rights of their citizens.

In the stark contrast that East Timor presently provides, it could be convenient to suggest that on comparative terms Australia has little with which to concern itself. We would, I think, be in error if we assumed that human rights abuses were just about violence, discrimination or vilification in the way we have seen graphically portrayed in Dili, although they certainly do include those things. But they also include ignoring people and not catering for their needs. They include the deliberate omission or marginalisation of specific groups on specific grounds: be it the mandatory detention of young people in the Northern Territory or in my home state of Western Australia; be it the appalling and disparate social indications such as health, education and housing for indigenous peoples; be it the mandatory immigration detention—in some cases for years—of infants because of inappropriate procedures in dealing with immigration applications; or be it the differing pay rates for young people just because they are young and, more to the point, the assertion that discrimination on the basis of their age is actually good for employment prospects. In the view of the Australian Democrats discrimination can never be justified on economic grounds. To quote my colleague Senator Bartlett, `we live in a society, not in an economy'.

Be it the denial of superannuation benefits to same sex couples or unequal ages of consent for heterosexual and homosexual males, or be it indifference to people with mobility or sensory impediment and their full participation in social life, these too are abuses of human rights and they form part of the continuum that means that our fellow human beings are treated with less than the respect they deserve and to which they are entitled, particularly because they are Australians.

It is a sad indictment of our political system that those groups which seem to have the loudest and best funded voices are the ones which appear to have the ear of government. We hardly need to be reminded that for this government it is large multinational private corporations which presently have that ear. HREOC exists as an ear for those in society who are not necessarily loud or well funded. The recent cuts to HREOC have served only to limit that role. It is now becoming clear through questioning at estimates hearings exactly what these cuts will mean to Australia's human rights watchdog. In real terms, the cuts will exponentially increase the delays in the handling of complaints of discrimination. There will necessarily be an abandonment of major research and development projects directed at reducing and eliminating discrimination against, and abuse of, those classes of persons protected by federal human rights and antidiscrimination law. There will be an abandonment of or, at the very least, a significant reduction in public educational activities directed towards reducing and eliminating discrimination against and abuse of those classes of persons protected by federal human rights and antidiscrimination law.

The Australian Democrats condemn the government for its cuts to the Human Rights and Equal Opportunity Commission. Further, this week the Senate's Legal and Constitutional Affairs Legislation Committee will report to the Senate on the government's amendments to the human rights commission. I will not pre-empt the committee's findings except to say that in my view, and in the view of the Australian Democrats, I hope that the committee will find that the efficiency of HREOC is central to the functioning of our democracy. Be that as it may, while this is indeed a government bill, the Australian Democrats acknowledge that this is not a bill of the government's making.

The constitutional validity of HREOC has had a long and chequered history. Until the High Court's Brandy decision in 1995, the system—known as the tripartite structure for discrimination complaints of conciliation—in an inquiry by the commission and a possible de novo hearing in the Federal Court, met with significant criticism on the grounds that it was inefficient and prone to exacerbate rather than ameliorate the distress of the complainant. This situation was summarised by the former member for Kennedy Mr Rob Hulls, who described that process, as it then existed, in the following way:

To my mind, the whole process is an abuse of human rights.

In light of these concerns, the question of the status of commission determinations was referred to the Senate Standing Committee on Legal and Constitutional Affairs in 1990. The majority committee report recommended that HREOC decisions be allowed for registration of decisions in the Federal Court. In accordance with that majority report, the Labor government introduced the Sex Discrimination and Other Legislation Amendment Bill 1992 which, among other things, amended the newly enacted Disability Discrimination Act 1992, the Human Rights Act, the Racial Discrimination Act and the Sex Discrimination Act to allow registration of the commission's determinations in the Federal Court. The whole intention of amendments was to have the effect as if a HREOC decision was an order of the Federal Court.

The High Court had other views when the constitutional validity was tested in the Brandy case, and I think it is important to summarise what happened in that case. In the Brandy decision the enforcement procedures of the 1992 act were the subject of challenge. Following a complaint lodged with the human rights commission pursuant to the Racial Discrimination Act, the commission found that Mr Brandy had breached the RDA and had made a determination including the payment of damages. The determination was duly registered in the Federal Court. Mr Brandy challenged the constitutional validity of the determination on the basis that it was an exercise in judicial power which may be conferred upon only a court and not an administrative body such as HREOC. The High Court unanimously found that the provisions within the RDA which allowed determinations of the commission to be enforced through registration in the Federal Court offended the separation of powers and was thereby unconstitutional.

It has been important to take some time to point to this chequered history because, as I stated earlier, clearly there has been no malevolence from the government in this bill that is presently before the chamber. The Australian Democrats, because of the constitutional imperative, are convinced of that fact and, indeed, we are convinced of the urgency of the bill.

The fact remains that there is no place for determinations to go now, other than to a Commonwealth court. Having said that, the Australian Democrats remain conscious of the consequences of having matters before courts. We are ever mindful of the principles of access to justice and, on that basis, we have made representations to the government concerning the implications of those access issues. In contrast with the Australian Labor Party, we will look creatively and constructively at the government's proposal to establish a federal magistracy, certainly to the extent that this new and emergency jurisdiction will reduce costs and the delays that exist in the present Commonwealth court system. Honourable senators, we each carry the responsibility of working towards the dignity of our fellow Australians. The human rights commission is an honourable institution that is arriving at the next stage in its evolution.