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Thursday, 19 June 1997
Page: 5824


Mr DARGAVEL(12.28 p.m.) —The excesses of executive government are limited in our society in two ways: firstly, by the opportunities citizens have at the ballot box and, secondly, by the separation of powers between the executive branches of government and entities like the judiciary and so on. The Human Rights and Equal Opportunity Commission plays a very important role in defending the community from discrimination in the face of uncaring executive government.

The member for Kalgoorlie (Mr Campbell) calls for the abolition of the Human Rights and Equal Opportunity Commission. And I suppose there is some concern on my behalf that that sentiment is shared by members opposite. The commission is independent from the state for very good reasons. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families in its report Bringing them home exemplifies the important work done by the commission. That report fearlessly exposes the worst excesses of governance in this country.

What was the government's response? It was to attack the report's author, Sir Ronald Wilson, who had the temerity, in the government's mind, to expose the national shame of 100,000 children being stolen from their families. Had we not had a fearless author in Sir Ronald Wilson, the community would not know of this national tragedy. Had the commission not been resourced to carry out this work, then the work would not have been done.

In my view the government does not support the very essential work of the Human Rights and Equal Opportunity Commission. It has cut its funding. It is not just a budgetary measure, in line with what it has done to all parts of national expenditure, with some exceptions. It is not just a budgetary measure, in line with those cuts applied to government departments and other public entities. It has applied a political cut, a cut designed to undermine fundamentally the role of the Human Rights and Equal Opportunity Commission.

A 40 per cent cut in funding is a political cut. A 40 per cent cut in funding is designed to fundamentally weaken the very important function of the Human Rights and Equal Opportunity Commission. It is designed to interfere with the capacity of the commission to defend the human rights of the nation's citizens. This is at a time that we have an absolute outbreak of intolerance. There has been a 50 per cent increase in complaints of discrimination. In this environment of a massive increase in complaints, we have the government cutting the defender of the community.

Where do people go when they are racially discriminated against? The member for Kalgoorlie talks about verbal vilification as being essentially affectionate colloquialism. I do not agree. In any event, the discrimination that members of our community are subjected to does not just go to verbal abuse; it goes to fundamental access to things like employment, schools, education, child care. These are some of the things that the Human Rights and Equal Opportunity Commission was formed to defend equal access to. Why should an employer refuse to engage an employee because that person is a woman? Why should an employer be able to refuse to engage an employee because that person is of Asian origin or Aboriginal descent? Clearly they should not and, in my view, the majority of the Australian community agree that there should be a body to ensure that those infringements of human rights do not take place.

It is important that the decisions of the commissioner are enforceable. But let us not kid ourselves. If we cut funding for legal aid and for the Human Rights and Equal Opportunity Commission then we are creating enforceable justice, but only for a few—those who can afford it. The majority miss out. The Federal Court is already overburdened in light of the government's refusal to appoint more judges. This point the government conceded yesterday when it moved to diminish the issuing of warrants for telephone intercepts. It said that the court is overburdened with work; therefore, we will bump the job down to the AAT. So the government is adding extra work for the court but without sufficient additional resources for the court to execute timely justice for victims of discrimination. This is not just a problem that the Federal Court faces.

The government has refused to replace the Sex Discrimination Commissioner, and this leaves the very important function of gender discrimination to be performed by other commissioners in general that are already overburdened with work. The fact is that that sex discrimination work will not be done, simply because this government refuses to replace the Sex Discrimination Commissioner. It is true that people can seek defence from discrimination in the workplace by joining strong unions, and many are now doing so thanks to the government's abrogation of its funding responsibilities.

This bill also attacks the fundamental operational arrangements of the Human Rights and Equal Opportunity Commission by making significant changes to the structure of the commission. It proposes that a sole figure, the president of the commission, will have enormous powers to determine what does and, more importantly, what does not get examined by the commission. There are several problems with this proposal.

The commission was established with so-called special purpose commissioners who were appointed to these positions because of their expertise in and understanding and knowledge of particular forms of discrimination. These special purpose commissioners include the Privacy Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Human Rights Commissioner, the Race Discrimination Commissioner, and I suppose at one stage the Sex Discrimination Commissioner may be replaced. These commissioners have been appointed to these functions to carry out specialist work and they have carried out their work diligently, assisted by the fact of their specialisation.

The government's lack of respect for the skills and expertise of these commissioners and their contempt for the positions themselves is illustrated by the fact that they have not replaced the Sex Discrimination Commissioner, Ms Sue Walpole. Ms Walpole resigned over three months ago and the government has not yet replaced her. In Australia we are relatively lucky in relation gender discrimination, as women mostly are able to work, to study, to choose whether they will marry and whom they will marry; generally, choices which are available to men are available to women. However, there are still many forms of discrimination against women in our society.

Many women in the Australian work force are still subjected to workplace harassment and they are still not represented equally across all occupational groups or at all levels. They are still clustered at the bottom, and middle at best, in most industries in Australia. In addition to the discrimination faced by women in employment, there is still inequality before the law in cases involving domestic violence, where the inability of applicants to get legal aid essentially leaves women exposed to unsafe circumstances. There are many other areas of discrimination against women in our society, but I will not go into them ad nauseam. Suffice to say that there is still a need for the a sex discrimination commissioner and that the failure to appoint a replacement to Ms Walpole shows the government's extreme contempt for Australian women, particularly those women who may from time to time seek to rely on the very important function executed by the commission.

The centralisation of complaint investigation and conciliation in the office of the president is problematic because it devalues the role of the special purpose commissioners. It enables the government to sit on its hands and not appoint anyone to the position of vacant special purpose commissioners while individuals in our society suffer from discrimination on the basis of their sex or for any other reason. In addition, there are no details in this bill of what guidelines the president is to follow in exercising the powers of complaint investigation and conciliation.

What is the point of having specialist commissioners who are expert in their areas if the basic bread and butter issues for many people are decided by one person who may not necessarily have the expertise or life experience to understand their situation? The role of individual commissioners now seems to have been severely cut with any member of the commission being able to examine a particular case for race, sex, disability discrimination and so on.

One expects that experts in social justice, discrimination and human rights are well placed to deal with these issues across the range of groups within our society. By and large, the experiences of cases from the Human Rights and Equal Opportunity Commission show that this is the case. However, there are still nuances of discrimination which may only be understood by someone with a significant experience dealing with that particular form of discrimination. Hence, the case for specialist discrimination commissioners is soundly made.

The Brandy case in the High Court determined that the second tier of review in the Human Rights and Equal Opportunity Commission was not directly enforceable. That is pretty obvious. By removing the second tier of review, however, this bill proposes that there be no checks and balances for individuals who take cases to the commission—that is, if you think you got the wrong decision from the commission and wish to challenge it, it is straight off to the Federal Court.

The former Labor government was very concerned about the lack of access that many people in the country had to judicial processes. In 1994 the government commissioned a number of reports on this issue including Equality before the law: women's access to the legal system, Equality before the law: justice for women and Access to justice. All of these reports showed there were significant barriers for many people in our society which stopped them from accessing and obtaining justice from the legal system.

Further, these reports showed that it was those who were already disadvantaged and discriminated against—women, people with disabilities, Aboriginal and Torres Strait Islanders, people from non-English speaking backgrounds and migrants—who were most at risk of not being able to access the legal system. It is a fortress. If you do not have substantial resources, you cannot scale the walls to get a bit of justice inside of those walls.

By transferring the execution of human rights jurisdiction to the Federal Court in essence, complaints will likely require a higher level of legal assistance. The explanatory memorandum to this bill states that it is not expected that the amendments will significantly impact on the legal aid budget. It is beyond me how there will not be an increased need for legal aid assistance when increasingly there will be determinations formed in the Federal Court. Clearly, what is going to occur is that people will be trotted off to the Federal Court and they will fall off because they will not have the resources to fight those cases.

Ninety-five per cent of cases that are determined at that second tier of review are complied with. It is only the minority of cases at this stage which require enforcement at court. This means that, despite the fact that these determinations are not strictly enforceable, they are effective in meeting the needs of those they are there to serve. They resolve the problems, or most of them.

If the government was serious about assisting the commission to assist its client group, it would retain this tier of review allowing determinations to be checked by the Federal Court where there was non-compliance with a determination of the commission. We had a model of operating a commission in this way with the Industrial Relations Commission. However, as Howard promised in the last election to stab the IRC in the belly—


Mr DEPUTY SPEAKER (Mr Quick) —Order! I remind the honourable member to refer to members by their positions.


Mr DARGAVEL —The Prime Minister promised—


Mr Martin —Jobless Johnny.


Mr DARGAVEL —As Jobless Johnny promised—


Mr DEPUTY SPEAKER —Order! I remind the member.


Mr DARGAVEL —As the Prime Minister, colloquially known as Jobless Johnny, promised the community that he would stab the IRC in the belly, he is now attempting to do the same with the Human Rights and Equal Opportunity Commission.

I now want to address the issue of the timing of these proposed changes. Since the race debate has been fuelled by the member for Oxley (Ms Hanson), there has been an increased incidence of discrimination in the community reflected by a 50 per cent increase in the number of complaints lodged to the commission. That is broadly reflective of many things that I am sure members sensitive to what is going on in their electorates see, such as increased abuse and increased discrimination.

In the environment of increased discrimination evidenced by an increase in complaints of 50 per cent, we see the government hack, slash and burn this commission to the magnitude of 40 per cent, leaving essentially a shell that is some kind of an apology. It says, `Look, we're doing something about the problem. We've got this commission.' The government can say that, but, in reality, the commission's fundamental ability to deal with these issues has been comprehensively compromised by this government.

For the government to fundamentally compromise the ability of the commission to deal with these issues, particularly at a time when we have increases in these problems, is, quite frankly, outrageous. The move to have all matters which cannot be conciliated dealt with by the Federal Court of Australia is a more costly proposition and it makes the funding cuts to things like legal aid even worse.

The other thing that gravely concerns me is the lack of community consultation about this legislation. There are major changes which will affect a major institution of this country. This government does not seem to have given any groups the chance to fully examine the legislation. The shadow minister has already made some pertinent points about this issue so I will not waste the time of the House repeating them here—suffice to say that the Senate report should be considered before these changes are made.

There is a reason why the government does not want this bill properly debated: the government fears that its agenda, which is a highly political agenda of trying the dismantle the Human Rights and Equal Opportunity Commission, is going to be exposed and it knows that that agenda is quite offensive to the majority of the Australian community.

It is offensive to the majority of the Australian community, I believe, if a person does not get a job because they are a woman or cannot be served at a pub because they are an Aboriginal. Those things are offensive. They go against the grain of what Australian society is about. Australians do support institutions which stop that from happening. The government fails, I believe, in justifying dismantling the commission and changing its fundamental structure without consultation, without adequate process and with contempt for the way that business is carried out in this House.

The truth is that the government does not want the commission to work. It does not want the sort of tremendous activity delivered in the stolen generations report. It does not want the executive challenged by the separate entities of the states such as the judiciary and instruments like the Human Rights and Equal Opportunity Commission.

I said at the start that one of the very important checks and balances on the excesses of executive government is the separation of powers. The separation of powers is not clearly understood, quite often, by those conveniently in government or those on the more conservative side of politics. They are checks on the very excesses which perhaps people are motivated to perpetrate. Organisations like the Human Rights and Equal Opportunity Commission are the defenders of the faith. They are the defenders of members of the community who are most powerless against those who are very powerful. Those who are very powerful and well resourced can fight things add nauseam in the courts. That is why we set up this commission when Labor was in government—to provide an accessible mechanism to enable the most powerless people and ordinary Australians to defend their basic human rights.

And what is wrong with basic human rights? What is wrong with women having equality before the law? Clearly, it is not something this government is committed to because it is dismantling those protections which are there to execute people's human rights: the rights of women, Aboriginals, migrants and people with disabilities. It is a shameful thing this government is perpetrating in the area of human rights and equal opportunity.