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Legal and Constitutional Affairs Legislation Committee
27/02/2018
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Human Rights Commission

Australian Human Rights Commission

[15:00]

CHAIR: Professor Croucher, welcome to you and your team. We understand that one of your commissioners, Ms Oscar, is not with us today because she's not well. We acknowledge that and thank you for letting us know. Would you like to make an opening statement?

Prof. Croucher : I thought it was worth just making a few opening observations, mainly to acknowledge that this week is the commencement, as of yesterday, of Australia's place on the UN Human Rights Council, in a very cold Geneva—I think it's minus eight there today. The locals call it 'La Bise', but our headline today was 'The beast from the east', which I think is more graphically Australian to describe it. It is also worth noting 2018 as being the 70th anniversary of the Universal Declaration of Human Rights. The committee that drafted that was under the masterly chairmanship of Eleanor Roosevelt. It's also the 70th anniversary of the election of an Australian as the President of the General Assembly. So it's a significant year and I thought it would be worth opening with that.

I also observe that, as Australia's national human rights institution, we do provide a crucial bridge between that international setting and the national contexts with respect to Australia's human rights commitments. We play a pivotal role in that tripartite architecture of government on the one side, civil society on the other and the national human rights institution in the middle. We're neither one nor the other and are independent of both but are crucial in that architecture. I look forward to your questions once more today and thank you for allowing June Oscar not to be here. She's pretty crook.

CHAIR: Please wish her a speedy recovery. Professor, you mentioned Australia's accession to the Human Rights Council. Is that something that your commission was directly involved in? If not, who was involved?

Prof. Croucher : No. Thank you, Chair. That's a very fair question. It's a UN election and Australia was elected by the UN to take a seat on the Human Rights Council.

CHAIR: Who was running Australia's election campaign? It wasn't you?

Prof. Croucher : Not me, no.

Senator Wong interjecting

CHAIR: I'm conscious that, some time ago, they were actively engaging in Geneva and elsewhere. I got a nice yellow notebook out of it. Just remind me. Australia was actually, in the end, elected unopposed—is that correct?

Prof. Croucher : I understand that to be the case, but one of the important planks of Australia's bid was supporting the important role that national human rights commissions can play in that tripartite architecture that I described.

CHAIR: That prompts my next question. How do you now interact with the international human rights commission or Australia's involvement in it? Who are the personnel involved in the—

Prof. Croucher : The Human Rights Council?

CHAIR: Yes.

Prof. Croucher : That's a representative council drawn from member countries all over the world. The precise composition we could provide—

CHAIR: Who are Australia's delegates there? Is it someone from your organisation?

Prof. Croucher : No, the ambassador in Geneva.

CHAIR: The ambassador for human rights?

Prof. Croucher : No, Australia's ambassador.

Mr Moraitis : The permanent representative of Australia to the United Nations in Geneva covers the Human Rights Council.

CHAIR: And there's no special interaction between your commission and the council?

Prof. Croucher : No, other than the role that the Human Rights Commission plays regularly in the regular cycle of reviews—reporting to the UN in terms of the convention cycles. There's no additional thing, except that the significance of the role that human rights institutions play was something that Australia factored in its bid to gain a seat on the council.

Senator PRATT: I'm interested to know about the commission's view of the level of protection for religious freedom in Australia. You've made some recommendations to the review that's currently underway, and I wondered in that context, if Dr Soutphommasane—and I probably mispronounced his name like I usually do; he tried to give me lessons but I'm not a very good student, I'm afraid, but he's very polite and kind about it—has any observations of the similarity of experiences of people in relation to their racial identity which underscore the need for protection on religious grounds.

Prof. Croucher : I should just say at the outset: I am on the panel that is looking at the religious freedom issues under terms of reference from the Prime Minister. In view of that appointment, I have not been involved in the commission's submission to that panel at all. We've managed it as a separation within the organisation.

Senator PRATT: That's good. So, it's appropriate I ask Dr Soutphommasane for an answer on that.

Prof. Croucher : Or just Commissioner will do.

Senator PRATT: Thank you. Thank you, Commissioner.

Dr Soutphommasane : I'm happy to give additional elocution lessons on the pronunciation of my surname. Can I just clarify what exactly you're after? Are you interested in the overlap between race and religion?

Senator PRATT: Yes, because clearly we've got established race discrimination and antidiscrimination provisions. It strikes me that the experience of many Australians and others in our country of religious discrimination will have much in common with the race discrimination that they experience and will underscore some of the approaches to reform in this area that we could look to.

Dr Soutphommasane : You're right to allude to the fact that the Racial Discrimination Act does not cover religion as a protected attribute under the Racial Discrimination Act. Discrimination is prohibited on the grounds of race, ethnicity, colour and national origin—and also immigration status—but religion explicitly is not covered. This does not mean that certain members of the community are not given protection against racial discrimination, if they do experience it. One way of putting it is to say that, regardless of whether you are Christian, Hindu, Buddhist, Muslim or someone of no religion, if you experience discrimination based on your racial background, you will still be covered by the Racial Discrimination Act. However, you're right to say that those who experience discrimination on religious grounds feel that it can resemble racial discrimination—for example, those who may experience hostility based on their faith may feel that the hostility is directed at them also because of their ethnicity or national origin.

Senator PRATT: With respect to the balancing of the approach taken in your submission with the need to bring religious discrimination into the existing framework but also to protect people with other attributes—be they LGBTI, pregnant or other gender identity or other characteristics—from religious discrimination on religious grounds. I'm sure you would have covered that in your submission.

Dr Soutphommasane : I think in our submission we make very clear that we believe religious freedom is something that should be valued and protected, and we believe that the inquiry or review should look into striking an appropriate balance between all freedoms. This is a basic principle of what we would describe as a human rights approach. To say that is merely to underscore that no freedom is ever absolute and that, as the saying goes, 'One's freedom ends where another's freedom begins.' I may have the freedom to swing my arm in the air in front of me, but that freedom ends where your nose begins, for instance.

Senator PRATT: That's a very good analogy, thank you, Commissioner. I can hand over to my colleagues now for further questions.

CHAIR: There are four minutes left, thanks. Is that—

Senator PRATT: No, to our colleagues in another party.

CHAIR: Okay, we'll go to Senator Steele-John.

Senator STEELE-JOHN: Thank you very much, Chair. Let me just say at the outset that it's been my first opportunity to talk with the commission today, and it's an honour and a pleasure to have the opportunity to do so. My questions go to Commissioner McEwin in relation to disability discrimination. I can't help feeling, Commissioner, that, with you on that side of the glass and me on this one, we might begin to get some good work done in relation to disability. I'd like to take you to some questions asked and just continue on with a line of questioning that my colleague Senator Siewert brought up with you last time we were here. Last October, relating to disability discrimination complaints and employment, you were able to provide figures relating to the number of complaints that you'd received and those related to employment, on notice, to Senator Siewert. I was wondering whether you might be able to give me an update on those figures—I'm happy for you to take that on notice—just to the year so far and then also whether you might be able to give me a breakdown of these employment related complaints by age and geography. Would that be possible?

Mr McEwin : Thank you, Senator, and welcome. The disability community is thrilled to have a senator with your skills and attributes in the parliament. So, again, welcome. I certainly can give you an update on figures for complaints relating to the Disability Discrimination Act. For the first six months of the year, 1 July to 31 December 2017, we have received 441 complaints under the DDA. That makes up 45 per cent of the total number of complaints received by the commission. Of those complaints under the DDA, employment made up 154 of them—in other words, 34 per cent of the total number of complaints under the DDA—and that is consistent with the last five years: 33, 34 and 35 per cent. One hundred and ninety-six of them relate to goods, services and facilities, so 44 per cent of the total complaints—

Senator STEELE-JOHN: Was that 139?

Mr McEwin : One hundred and ninety-six for goods, services and facilities, so 44 per cent. And 69 of them relate to education, which makes up 15 per cent. In regard to your question around the breakdowns such as geography and age, in terms of geography, do you mean by state and territory?

Senator STEELE-JOHN: By state and territory, yes.

Mr McEwin : Certainly. Well, if you bear with me—actually, I have the figures for all of the complaints received. I don't have a breakdown of the DDA complaints, so I will take that on notice.

Senator STEELE-JOHN: I'm happy for you to take that on notice.

Mr McEwin : As well as for the age range, if we collect that information.

Senator STEELE-JOHN: That would be great. Would you mind also providing goods and services related complaints by state and territory? Would that be possible as well?

Mr McEwin : Certainly.

Senator STEELE-JOHN: Excellent. Would you be able to give me a breakdown of overall complaints received by resolution? I'm trying to get a per cent figure, of the complaints cent received, of how many got one type of resolution or another.

Prof. Croucher : I will come in here. We have some overall statistics in relation to the finalisation of complaints over that period. In our preparation documents we don't have a breakdown as per the various discrimination acts. I can give you an example: we finalised 1,042 complaints during the first six months of the reporting year. There were approximately 625 conciliation processes, of which 435 or 70 per cent were successfully resolved. If you'd like a breakdown that reflects the DDA stats, we can certainly ascertain that for you.

Senator STEELE-JOHN: That'd be wonderful. Sorry, I should have clarified, in terms of time frame for this information—and again take it on notice and take as long as you need—I've got Senator Siewert's information here from the years 2012-13 to 2016-17. It gives you a reasonable idea of trend. Would you be able to frame your responses to questions on notice within the same time frame, within the different geographic—

Prof. Croucher : We have the overall data and I'm sure we can unpack that for you.

Senator STEELE-JOHN: That would be wonderful. I know you're never going to take a question from me again! Overall DDA complaints which relate to either the inability to access or be provided with interpretive services—I don't know whether you keep those kind of records as to the nature of complaints?

Mr McEwin : We do.

Prof. Croucher : We should be able to identify those. Obviously, the information about the complaints is a matter that's—

Senator STEELE-JOHN: It's confidential.

Prof. Croucher : It's extremely confidential, as in it's covered by secrecy. Even the commissioners are not provided that information, as they have no direct complaint handling responsibilities. But this information is of great utility to this committee and we're very happy to unpack it in that way with the relevant people.

Senator STEELE-JOHN: That would be superb. I'm not sure whether this would be for Mr McEwin; I think it probably would be. In your response, Commissioner, to my colleague Senator Siewert's questioning in relation to employment in October, you said that you were working closely with the Australian Public Service Commission on the ways we can improve recruitment practices, interview processes and making sure that applications are accessible. I wondered whether you would be able to tell me if you believed targets or quotas could play an effective role in this, and whether you've had any discussions with the government to establish these kinds of targets within the Public Service?

Mr McEwin : Thank you for the question, and it's a very good one because we do need to increase the number of people with disabilities in employment not just in the Australian Public Service but generally. I have had a number of ongoing conversations since I commenced. The last conversations I had with the Australian Public Service were shortly before Christmas around the success of their graduate programs, and trying to secure employment for graduates with disabilities. In terms of quotas and targets, the commission does not have a fixed view on one or the other. We see that both have merit and both have challenges in terms of implementation as well as ensuring that we can increase the number of people with disability. I'm also happy to give you a more detailed outline of the things that I have discussed with the Australian Public Service.

Senator STEELE-JOHN: That would be wonderful, thank you. Thanks so much for your time.

CHAIR: Thanks, Senator Steele-John. Senator Pratt, do you have any more questions?

Senator PRATT: No.

CHAIR: Senator Siewert, do you?

Senator SIEWERT: I've got some questions of the Age Discrimination Commissioner. First off, I want to go to broader issues around what your priorities are for this year. I have read your speech from a couple of weeks ago where you focused on elder abuse and ongoing discrimination in the workplace and discrimination against older people trying to re-enter the workforce. I'm wondering if those are your two main priorities for this calendar year, and I want to ask you some specific questions around both those issues.

Dr Patterson : Thank you very much, Senator Siewert. As there are only 24 hours in a day, I've had to try and limit what I do—

Senator SIEWERT: I totally understand!

Dr Patterson : and I've chosen three specific areas. The first is, as you mentioned, to look at employment of older people and ensure that we reduce the amount of ageism. I'm working in conjunction with, for example, a benevolent society in that area. They're doing a big five- to 10-year program on attacking ageism. The second thing I'm working on is elder abuse, which I think even in the last 16 to 18 months has become much more high-profile. We recently had a conference organised by Seniors Rights Service and they had 560 people—they were expecting 400. I think that demonstrates there's a lot more interest. The third thing I'm focusing on is older women at risk of homelessness, which is sort of a hidden tsunami of people.

I have some other things that I do that are smaller, but are just as important. I've got a meeting with Australia Post about removal of letterboxes, which significantly affects older people. I've been doing a project with a young woman—one of my roles is to promote positive attitudes to older people. She organised an exhibition in Victoria of 100 students painting 100 centenarians, and we're now working on getting a subsidy for her to do the same thing in New South Wales. I hope, before the end of my time, we have an exhibition at the portrait gallery. These paintings, the top ones, could have been up for the Archibald—they were so good. It's a wonderful intergenerational program.

Senator SIEWERT: I can point you to one lady in Margaret River, who I met last week, who has just celebrated her 100th birthday.

Dr Patterson : In WA, you've got a disproportionate number of centenarians. There are now, I think, 4,700 in Australia—there were 276 in 1976—and that ought to be 44,000 in 2040. It's significant for our economy and for planning for a 100-year life.

Senator SIEWERT: Thank you for that. Can I follow up, firstly, on employment issues. I notice you're following up the Willing to work report from 2015-16. Where is that process, in terms of progress with recommendations, up to?

Dr Patterson : I wish we had an hour, because there are a large number of recommendations and they cover a broad field, including some overlapping with the work that Commissioner McEwin is undertaking. I've been talking to the public service about reporting, in the annual reports, the number of people who are employed at various ages—50 to 55, 55 to 60, et cetera, to 75-plus—but also looking at, in the departments, when older people are appointed. We might get a natural increase, because of the removal of the 54/11 issue that meant people left. And there's a natural increase. But also, are we being active? It's very difficult to ask the private sector to do this if the public sector isn't doing it. I've also raised it with some of the states as well.

I have been working with a number of organisations that are focused on employing older people and cooperating with them. I'm hoping that we'll be able to make a submission in the Try, Test and Learn, in a partnership with a couple of organisations. We're in discussion at the moment with that. There's the Try Test and Learn series. I think we got interesting ideas that can augment the programs that are currently being undertaken. I have also been in discussions with Elizabeth Lyons from WGEA about asking companies to volunteer. One of the recommendations in the Willing report was to get companies to do it. I thought it was a bit difficult to ask them to do it when we weren't at the point where the Public Service was doing it, but to ask people to volunteer if they have the information, and we have been working on some questions that might be able to be put. And then highlighting those organisations which were employing older people and then maybe moving towards some sort of more formal requests for information. So we'll see how we go on a voluntary basis. And Libby Lyons has been quite responsive to that, and now we're just working on some questions.

Senator SIEWERT: I have got a question that I think crosses between yours and Mr McEwin's portfolio. I was reading the report on the number of people on DSP, the changes to DSP, in the PBO. There are several reports out at the moment on this issue. I think it was the PBO report that said a number of people have come off DSP because they have aged into aged care. In other words, we're dealing with an ageing population but also an ageing population with disability who aren't being able to find work and are moving straight onto the aged pension. And I'm wondering if between the two of you as commissioners you have looked at that particular issue?

Dr Patterson : I haven't particularly looked at that issue. But I'm challenged with the load of the ones who aren't eligible for the aged pension and who are not getting jobs. Now some companies aren't employing people over 55.

Senator SIEWERT: That's the point. People are on DSP for a significant period of time and they are ageing off that onto the aged pension.

Dr Patterson : As I was saying, there are people who are not eligible for aged pension who, at 55, are not able to get jobs.

Senator SIEWERT: Yes. That's my concern. We have just been talking about people with disability. The biggest area of complaint is employment. They aren't able to be engaged in employment, so we've got older workers who are also on DSP. I totally agree; there are people on the lesser payment of NewStart that are ageing off that on to the age pension.

Dr Patterson : I know that Commissioner McEwin is aware of that area, but there's a limit to what one can do with the limited resources I have.

Senator SIEWERT: I accept that.

Mr McEwin : If I can just add, both Commissioner Patterson and I, when we meet with the stakeholders, particularly in the corporate sector, talk about the business case. We know that if you invest, say, perhaps X amount, you will save in the long term. In my conversations, and I'm sure Commissioner Patterson would agree, many people are starting to realise that. They're starting to realise that with the right support, the long-term benefit will accrue. But it's a long ongoing conversation.

Senator SIEWERT: But you haven't been specifically looking at that issue either?

Mr McEwin : In terms of what you have just described, do you mean the very barrier of people who are, for example, on the DSP not being able to get jobs? Absolutely, that's one we talk about every day.

Senator SIEWERT: I am particularly focused on the older group of workers because that's the area that I have been engaging with, that group that are ageing into the age pension without being able to find work. So I'll continue to follow that issue. It's not a criticism.

Dr Patterson : No, I get that.

Senator SIEWERT: I appreciate the huge workload but it's an area that I think needs some attention. I know that we're going to run out of time, so I very quickly want to ask about elder abuse and particularly the announcement. I'll ask AGs later about the announcement that the Attorney-General made. Dr Patterson, I'm just wondering if you have had any interaction with that particular announcement that was made just last week out of the conference you were just talking about?

Dr Patterson : After the conference on Monday and Tuesday, there was a one-day strategy meeting. I think I might have invited myself or I was invited—I can't remember. But the focus was to be on the national action plan and pressuring for it. There was a quick sort of turnaround and now it's about what you could contribute on the national plan. I think the sector was delighted that the impetus from the ALRC report wasn't going to be lost and that Minister Porter was actually moving in the same direction and showing a keen interest.

Senator SIEWERT: So you'll be participating in that national plan process?

Dr Patterson : I don't know. It was announced only recently. I have to say that the shadow minister also announced that they had a plan that they were going to bring, but I think it was slightly gazumped on the day. I would hope that there will be a bipartisan approach because it really is not a party political issue; it is an issue that really should concern the whole community, like family abuse.

Senator SIEWERT: I agree with you. I wasn't for a second suggesting there was. I was interested in the level of involvement that you expect you'll have in the preparation of the plan.

Dr Patterson : I will insert myself in every place I think will make a difference. This is a place where child abuse and family abuse was, and in the last year and a half there's been a real focus on it. I know there's a commitment from the sector to be involved and to find as many creative solutions as possible.

Senator SIEWERT: It may be that I'm asking a question of a matter of opinion, so politely tell me to get stuffed if it is!

Dr Patterson : I would never do that, Senator!

Senator SIEWERT: In terms of aged care and elder abuse, when people are receiving homecare or are in residential care, do you consider that should also be included in the national plan? I will be following up with A-G's.

Dr Patterson : The Australian Law Reform Commission made recommendations about elder abuse in aged care. I've tried to stay a little out of aged care because, once I dip my toe in there, I'll find myself not as able to do the work for the people in the community who don't have that sort of support. But they do have an Aged Care Complaints Commissioner and various committees that look at standards, and I am sure that will be included. It's an area that I've left to those who have that responsibility, because there are people in the community who have no-one responsible when they're being abused.

Senator SIEWERT: I totally understand that rationale. Quite frankly, I'm struggling with it myself. I was looking at how you would see that fitting into the national plan.

Dr Patterson : I think it fits into the national plan, just like the Law Reform Commission had a section in a number of recommendations about—

Senator SIEWERT: So you're basically supporting their recommendations?

Dr Patterson : I've talked to some people who feel that reports are written and don't get followed up. In fact, one very interesting elder lawyer in Queensland, with whom I've had a couple of sparring matches in a wonderful way, thought they wouldn't be acted on and I said, 'If I'm involved, it will be.' I'm determined to see as much of that report implemented as possible because I think it's absolutely vital.

Senator SIEWERT: Thank you.

CHAIR: Commissioner Patterson, I'm pleased to hear you're promoting positive attitudes towards older people. Do you think an accusation that some older person is senile and should give up work is the sort of approach that you would expect from community leaders?

Dr Patterson : I would see that as ageist, Senator. That's the sort of complaint that we get when we have complaints. The number of complaints in the aged area is very small. It's about nine per cent of the total number of complaints. It's usually about: 'You're too old for the job,' or 'You're too experienced,' or 'You haven't got what it takes because you're older.' So it depends. If people said that to someone, they can bring it to the commission as a complaint.

CHAIR: What does the commission do if it gets that sort of complaint?

Dr Patterson : I don't handle the complaints. Our president would be better able to answer that.

Prof. Croucher : People who want the assistance of the commission can inquire. We have, on average, 15,000 inquiries every year. Some of those are even from employers who want to know about doing the right thing. If something is formally taken as a complaint, then it goes through the conciliation process, under strictly confidential processes. It's not a court proceeding; it is a conciliation process.

CHAIR: In the instance I'm using, you'd be encouraging the person who made those comments to apologise and desist from doing that in the future?

Prof. Croucher : The way that is handled within the conciliation process may indeed generate an issue of apology. It may generate systemic changes, where an employer, for instance, agrees to adopt a training program or adopt guidelines. There can be systemic improvements, even arising out of what is essentially just an individual raising a question of concern. It can be an apology between the parties or it can be more systemic, but it's utterly individual within the conciliation process.

Dr Patterson : I can add to that and it would also answer another question that Senator Siewert asked. I believe there is a need for deep changes, and I mean deep changes at an educational level. I've discussed with the Human Resources Institute and the Australian Institute of Company Directors about how we get changes. This is not being critical of young people, but sometimes they don't understand why an older person wants to continue working, maybe at a lower level than they had before. It needs to be an education with students who are recruiters and human resource students—having people who have had a positive experience with employing an older person or had doubts as to how a person would fit in and they showed that they really fitted in and made a real difference to the business. I have been working with the Institute of Company Directors on trying to get directors to ask questions of their HR people about what they're doing and what they're doing to counteract any ageism culture within their HR department. That's a really deep change that I think is needed in the recruiting process.

CHAIR: That's how you're trying to promote positive attitudes towards older people?

Dr Patterson : Sometimes it's just a lack of experience. When you're 26, somebody who's 32 seems very old and when you're a bit older it doesn't. I did that when I was teaching health science students. I felt we needed deep changes. You can attack it from various levels and one of them is the education level. I've had tremendous cooperation with the Australian Human Resources Institute.

CHAIR: This is a leading question for you, Commissioner, in view of your past—

Dr Patterson : I thought you were going to mention my age then!

CHAIR: professions. No, not at all. You'd expect that parliamentarians should be showing the way, promoting a positive experience, leading the path and trying to promote positive attitudes towards older people.

Dr Patterson : I think we all need to do it because more of us are going to live longer. I say this in every speech I give: the culture that we create now is the culture we'll inherit when we're all a lot older.

Senator Seselja: Do you have a particular example in mind, Chair?

CHAIR: I don't mention any names, because I don't want to make this political, but a parliamentarian accusing someone of being too old and senile and saying they should resign.

Mr Moraitis : Who called you senile?

CHAIR: I'm not mentioning any names. I'm keeping this as—

Senator Seselja: Was it a Green?

CHAIR: No. It is a party that usually carries on about these sorts of things.

Senator Seselja: I think it was.

Senator WONG: Is this before or after you called Senator Watt stupid? Just checking!

Senator Seselja: That's not ageist.

Senator WONG: That's true.

Mr Moraitis : You'd have to ask another commissioner.

Senator WONG: It's not so dignified, is it?

CHAIR: Where does 'stupid' fit in with the Human Rights Commission, Senator Wong?

Senator WONG: And you're a well-known defender of the Human Rights Commission.

CHAIR: It just amuses me that these people, with highly skilled and feeling approaches to these sorts of things, don't practice what they preach.

Senator WONG: Sorry—'feeling approaches'? What's a 'feeling approach'?

CHAIR: We'll go to Senator Hume.

Senator Seselja: Could I just ask: what time are we due to break?

CHAIR: We were supposed to have a break 20 minutes ago, but I thought we were coming to the end of this. We'll have a break now.

Proceedings suspended from 15:39 to 15:53

CHAIR: I call back to order the Legal and Constitutional Affairs Legislation Committee's inquiry into the 2017 additional estimates. We're just slightly missing a minister, but I think Mr Moraitis will be able to oversight the government's interests until the minister arrives. I was going to go to Senator Hume, but, before that, are there any questions from anyone for Commissioner Soutphommasane who has to leave for a particular flight. If anyone does have questions for the Commissioner then we'll deal with them now. As there are none, Commissioner, you're excused and have a good flight.

Dr Soutphommasane : Thank you, Chair, for accommodating.

CHAIR: That's fine. Senator Hume.

Senator HUME: Thank you, Chair. Professor Croucher, last year the government made some changes to the Australian human rights act. Can you explain the impact of those changes on the processing of complaints through your organisation?

Prof. Croucher : Certainly. I'm very happy to answer that question. The changes were principally to the procedures by which complaints were handled, in particular to introduce a pre-inquiry process to facilitate the closing or terminating, which is the unfortunate language that's used in the act, without having to go to a full inquiry. I do have some statistics on that very specific question. From 13 April 2017—which was the date on which the amendments commenced—up to 2 February, there were 111 complaints that were assessed as potentially appropriate for the pre-inquiry closure. During that same time frame, there were 1,483 complaints overall, so the ones that were assessed as potentially appropriate for closure represented approximately 7.5 per cent of all the complaints received in that period. I can break that down further. Of those 111, 73 complaints have been finalised; 27 were terminated; nine were withdrawn; 23 decided not to proceed; 12 were resolved; and two were administratively closed.

Senator HUME: Can you explain the difference between 'finalised', 'terminated', 'closed' and 'resolved'?

Prof. Croucher : Terminated means a decision was made about them. Finalised includes things like administrative closure—for example, if someone's already lodged a complaint in another place or resolves it themselves and withdraws it. Finalised is a nicer word; terminated is the technical one. I can break down the 27 terminated complaints further: 12 were terminated as out of time; eight were terminated as lacking in substance, which is one of the more particular grounds that were introduced; five were terminated on the basis that there was a more appropriate remedy reasonably available to the complainant or that the complaint had already been adequately dealt with; and one complaint was terminated as not unlawful. The idea is it gives an opportunity to streamline and to have a pre-inquiry assessment.

Senator HUME: You would say that the new processes that have been in place since April last year are having a positive impact on your work flow?

Prof. Croucher : We're still seeing how they work out. Until there is any specific challenge or law that's generated around it, we're still working our way through them. Clearly, making a decision as to whether something's appropriate for pre-inquiry closure or termination still requires active involvement of the team, so it's not done in a peremptory way, but it does provide an opportunity for an earlier closure of a matter.

Senator HUME: Thank you, Professor.

CHAIR: Who else? Senator McKim?

Senator McKIM: Thanks, Professor Croucher, and good afternoon to you and your team. I wanted to ask you a couple of questions about your role on the religious freedom panel.

Prof. Croucher : Certainly—to the extent that I'm able.

Senator McKIM: Of course, and I understand that you are not here to speak on behalf of the chair; I acknowledge that. I wanted to start by asking whether you've personally been to all of the hearings that the panel has held?

Prof. Croucher : I have personally attended a considerable number of them. For some of them, I have attended on the telephone. For instance, yesterday, I attended most of the Brisbane consultations on the phone from my Sydney office. Last week, I was in Geneva, so I was unable to attend any. The approach that we've taken is to require that as many of the panel as is possible do attend, so that there is the chair and at least two other people in attendance if at all possible.

Senator McKIM: Thank you. That is clear and I appreciate that. Is there any mechanism whereby, if any of the panel members are unable to attend—and there is no criticism inherent in this question with regard to people's capacity to attend—there is a transcript available or the hearings are recorded? Is there a mechanism to catch up on what you may have missed if you weren't able to attend?

Prof. Croucher : That's a very good question. They're not hearings as such. It is a consultative process that is very like the one that I was familiar with at the Law Reform Commission. In fact, to a large extent that was used as a model. So they're consultations, not parliamentary hearings. The panellists make their own notes. The secretariat does make some notes that are available to the panellists, but they are not minutes.

Senator McKIM: I understand that, and they are certainly not verbatim.

Prof. Croucher : No, and that is explained at the commencement of each of the consultations. I'm answering that as a participant on the panel and not in the context of the Human Rights Commission's work.

Senator McKIM: I do understand that but—

Prof. Croucher : But I'm very happy to take those specific questions.

Senator McKIM: Thank you. Just for clarity, though, you're on the panel as a result of your position at the commission?

Prof. Croucher : No. I think I was selected—I could just give you a couple of illustrations as to the—

Senator McKIM: I'm aware of your broad experience in the area of rights, Professor. That's not in question.

Prof. Croucher : There are two, if I may. If it's a question as to the appointment of people on the panel, that's best directed to—

Senator McKIM: PM&C.

Prof. Croucher : PM&C. I was a co-author, co-editor, of a book on law and religion, and I also chaired the ALRC's inquiry on freedoms, and we did do a specific chapter on religious freedoms, so there is some relevant experience quite independent of whatever role I hold now.

Senator McKIM: There most certainly is, and I have read the relevant chapter of the law reform report. Has the matter of the chair's recent elevation to President of the New South Wales Liberal Party been discussed by the panel, and any potential for conflict of interest?

Prof. Croucher : No. I only noticed that in some news today, I think. No, that's not come out at all.

Senator McKIM: Do you have concerns that there may be at least a potential for conflict of interest, or at least the perception of a conflict here, given that the religious freedom panel was commissioned by a Liberal Prime Minister, and Mr Ruddock has now been elevated to the President of the New South Wales Liberal Party?

CHAIR: I'm not sure—

Prof. Croucher : I don't know that that's fair for me to—

Senator Seselja: You realise he's been a member of the Liberal Party and parliament for over 40 years?

Senator McKIM: I'm aware of that, thanks. If you don't want to answer that, that's fine.

CHAIR: One moment, President. I'm not sure that that question doesn't offend against the rule against asking for opinions, which is there for very, very obvious reasons, and those reasons are that we don't want public servants or, in your case, people at independent agencies in a very senior position, being asked to give opinions on matters involving the political sphere.

Senator McKIM: Chair, the president has indicated that she doesn't wish to answer it, and I've accepted that, so—

CHAIR: I am sorry; I hadn't realised. I wouldn't have allowed the question had I been a bit quicker, but okay; all is resolved.

Senator McKIM: Professor, thank you for that. Did you attend a two-day conference with the panel, a religious conference called Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms which was put on by the International Center for Law and Religion Studies and the University of Notre Dame?

Prof. Croucher : The panel attended a consultation in conjunction with that. As was the practice at the Law Reform Commission, if there happens to be a handy conference, whether it's about elder abuse or, in this case, it happened to be a conference of a range of people who are interested in the area—that was an opportunity to add on and steal an hour and a half, I think we allowed in that case. It was opportunistic and convenient.

Senator McKIM: Has the panel, to your knowledge, attended any other conferences in an opportunistic way, as you—

Prof. Croucher : I couldn't say. I'm not aware.

Senator McKIM: But you haven't?

Prof. Croucher : It's been a very intense period, Senator, as you would imagine.

Senator McKIM: I appreciate that.

Prof. Croucher : It might be worth noting, just for your information, given your interest, that there have been over 16,000 submissions.

Senator McKIM: Yes, I'm aware of that, and originally not to be made public.

Prof. Croucher : If I may, if there's a question about the procedure I would direct it to the secretariat, but it has been put on record that the procedure to be adopted was like the ALRC procedure. The fact that there has been a delay is merely a matter of numbers.

Senator McKIM: That's okay. My comment was just that, a comment, not a question. I'll park that there. Would it be fair for me to observe that churches already have broad exemptions in antidiscrimination law in Australia?

Prof. Croucher : I think perhaps, if you wouldn't mind, it would be more appropriate to let that inquiry run its course. The Human Rights Commission has put in a submission to inquiry, and I think it would be best to let that process run its course.

Senator McKIM: When are the next hearings scheduled?

Prof. Croucher : The consultations?

Senator McKIM: Yes.

Prof. Croucher : There's a consultation date today in Adelaide, which I'm not attending; there are consultations next week in Darwin, which I will attend; and there's a schedule that's blocking out almost every single day over the next week or two.

Senator McKIM: Last question, Professor—thanks for your tolerance. We have heard already from some of your commissioners about the need to balance rights. I think it was put that there are no absolute rights—maybe there are a couple of absolute rights. We could probably have a discussion about that.

Prof. Croucher : There are some non-derogable rights.

Senator McKIM: I think there are some non-derogable rights, and perhaps absolute is another way of putting that. Leaving that aside, given that, I think, we have just agreed that most rights are a balance and often you need to balance them with other rights, do you think that the terms of reference are such that the panel can consider the range of other rights which may be impinged on if rights that are currently described as rights of religious freedoms were expanded in Australia?

Prof. Croucher : The terms of reference, again—

CHAIR: Again, Senator, 'do you think' is really a matter of opinion.

Senator Seselja: To be fair, the terms of reference are not for this portfolio. They're to be asked in another portfolio—PM&C.

CHAIR: That was going to be my question. Professor, are you on that panel? I'm not quite sure what panel we're talking about.

Prof. Croucher : It's the religious freedom panel that the Prime Minister established just before Christmas.

CHAIR: Okay, now I understand the reference to Phillip Ruddock. Are you on that because you are the President of the Human Rights Commission?

Prof. Croucher : No. I was asked to be on the panel. The particular qualifications and eligibility were not a matter for me, but I suggested, when Senator McKim asked me a similar question that I had certain credibility in the area by virtue of the fact that I had co-edited a book on law and religion and I led the ALRC inquiry, a whole section of which was devoted to encroachments on religious freedom. I understand the interest in the area. It is a most interesting subject and pertinent for the day, but I do need to confine my responses quite carefully.

Senator PRATT: Professor Croucher, in that context, you did kind of distinguish yourself in two hats. I want to ask whether your public remarks around these issues will conform to the position taken by the Human Rights Commission in its submission or whether they will conform to the other hat that you're wearing?

Prof. Croucher : The panel will produce a report to the Prime Minister, which is the terms of reference for that panel.

Senator PRATT: So you're not expecting to make any public remarks in the context of that panel. Any public remarks you make will be in the context of your role as president of the commission.

Prof. Croucher : I think that's a fair observation. I will not be making any remarks from the position of being on the panel. The panel's report will speak for itself, and then I will resume my role as President of the Human Rights Commission.

Senator PRATT: And reflect the position taken by the commission in its submission?

Prof. Croucher : The commission operates in a way that determines objectives. I am the president and in that area I will speak as the commission.

Senator PRATT: Representing their views.

Prof. Croucher : Representing the commission's views.

Senator PRATT: The commission's views—which therefore, I assume, are as submitted to that panel inquiry.

Prof. Croucher : The commission has made that submission, yes.

Senator PRATT: Therefore officially—I'm not saying privately—their view is your view.

Prof. Croucher : I'd rather not unpack that at the moment. As I said, can we let the other process run its course? Then I'd be very happy to answer questions.

Senator PRATT: Okay.

CHAIR: It doesn't suit the agendas of some people to do that.

Senator WATT: My questions relate to the current processes around sexual harassment complaints. Can you remind me briefly what jurisdiction the commission has over sexual harassment complaints?

Prof. Croucher : The jurisdiction we have is under the Sex Discrimination Act, which is a Commonwealth act. That concerns sexual discrimination issues, which includes sexual harassment, in employment and public life.

Senator WATT: If someone has a complaint about sexual harassment they would file that with the Human Rights Commission?

Prof. Croucher : They can seek assistance by inquiring; or they may make a complaint, which then would invoke the pre-inquiry assessment and then possibly the complaint-handling procedure through the conciliatory processes the commission offers.

Senator WATT: What powers or processes do you have in place to ensure that the identity of complainants is kept secret?

Prof. Croucher : There is a non-disclosure provision in our act, which is a secrecy provision. It requires extreme confidentiality of all details regarding complaints.

Senator WATT: Why is it so important that the identity of complainants in sexual harassment matters is kept confidential?

Prof. Croucher : It's not only complainants; it's those who are complained against. Part of maintaining the integrity and the confidence in our processes is that commitment, backed up by a non-disclosure provision, to extreme confidentiality.

Senator WATT: What do you see as the harm to either a complainant or someone who is alleged to have committed sexual harassment? What do you see as the harm that can come to them if details of a complaint are made public?

Prof. Croucher : There is much published discussion on this. Indeed, the Sex Discrimination Commissioner this morning made comments in a radio interview that I heard driving to the airport which reflect much the same concern: that a person may wish to make a complaint but not wish that matter to be made public. Similarly, with respect to those are complained against, the fact of a complaint itself does not necessarily equate with guilt or innocence in a court of law. Sometimes much damage can come through allegations. But the integrity of the process offered through extreme confidentiality ensures a certain confidence that the conciliation process might effect a result.

Senator WATT: Is there any limitation period, for want of a better term, that exists for someone to make a complaint of sexual harassment?

Prof. Croucher : I believe that it's around 12 months—

Senator WATT: That's what I think too but I haven't looked at the legislation.

Prof. Croucher : but I would need to check. It's within the legislation and I know there's been some change to it, so can I confirm that with the office?

Senator WATT: Sure. I understand—and I don't know whether this is correct—that currently the commission has the power to terminate a sexual harassment complaint if it's made more than six months after the harassment allegedly occurred. Do you know whether that's correct?

Prof. Croucher : I would have to confirm that precise detail. We have a number of discrimination acts that we work with, and the complaints are handled by a discrete group of staff within the commission.

Senator WATT: The concern that's been raised with me—there are a couple of things. For starters, if it is a six- or 12-month limitation period, that's a lot shorter than the limitation period that applies for a range of other courses of action, especially for things that happen in the workplace. For instance, for a breach of an employment contract, it's six years to bring an action; for a breach of an enterprise agreement it's six years. So six to 12 months, whichever it is, is a lot shorter. Has any consideration been given to changing the period of time that someone has to bring that kind of complaint?

Prof. Croucher : There are a number of elements in your question and observations. If I may, it's not a limitation period. Limitation period is more strictly a term that applies to litigation. It's not a limitation of that kind. There is a time frame within which complaints should be brought. It's not an absolute bar, but if I may provide a little more clarification around that, I'd be happy to do that following this meeting.

Senator WATT: Okay. Do you recognise that if the time period within which people can make these complaints is limited it may disadvantage people who, for whatever reason, only feel confident to bring a complaint, maybe, after they've left a job or sometime after the harassment has occurred?

Prof. Croucher : I think that's a fair observation and there is discretion within the legislation.

Senator WATT: If I could get you to have a bit of look at that, that would be great.

Prof. Croucher : We'll provide you with more specifics on it.

Senator WATT: Thank you.

CHAIR: The confidentiality provision you're talking about, is that mandated in your act?

Prof. Croucher : Yes, it is.

CHAIR: So if this committee, as it's often prone to do, seeks to obtain names and information from the police and other people like that—if we tried to do that from you—which is your overriding obligation?

Prof. Croucher : We would resist that and claim public interest, in relation to that disclosure.

CHAIR: Because of the specific provision in the act?

Prof. Croucher : Yes, and our commitment to the necessity of that confidentiality as the bulwark of the integrity of our processes.

Dr Patterson : The commissioners do not get that information. We get a summary at the end of the complaints but we don't get—it's a total Chinese wall between the complaints process and the commissioners, although we get a summary—

CHAIR: So you don't get names, you're saying?

Dr Patterson : No.

Prof. Croucher : That is a matter of control within the commission. The staff of the commission are bound under the act by that secrecy provision.

CHAIR: All right. Does that limitation period, which you say is not strictly so-called, apply in the race discrimination area the same as it does in the sex discrimination area?

Prof. Croucher : Yes, it applies with respect to all of the complaints under the discrimination legislation.

CHAIR: I don't want to rehash old discussions about QUT students, but there's something about that limitation that we'd need to look into.

If nobody else has any more questions, thank you very much, Professor, and your team, commissioners, for being with us today and assisting us. Keep up the good work and the work you do not as a commissioner. Don’t, in any way, be hesitated from discharging your duties by anything you might hear at this committee.

Prof. Croucher : Thank you, and thanks, senators, very much for your questions, once again.