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Legal and Constitutional Affairs Legislation Committee
Human Rights and Anti-Discrimination Bill 2012

BROUN, Ms Jody, Co-Chair, National Congress of Australia's First Peoples

MALEZER, Mr Les, Co-Chair, National Congress of Australia's First Peoples

O'BRIEN, Ms Rachel, National Legal Secretariat Officer, National Aboriginal and Torres Strait Islander Legal Services

Evidence from Ms O'Brien was taken via teleconference—


CHAIR: I welcome representatives from the Congress of Australia's First Peoples and the National Aboriginal and Torres Strait Islander Legal Services. We have submissions from both of your organisations. They are numbered 238 and 255 respectively. I invite you to speak to those submissions and then we will ask some questions.

Ms Broun : Firstly, we acknowledge the Cadigal people of the Eora nation as the traditional owners of the country we are on today. Thank you for the invitation to speak today. The National Congress of Australia's First Peoples is a national independent body with a membership of more than 4,500 individuals and 150 organisations, collectively representing around 50,000 Aboriginal and Torres Strait Islander people. Our aim is to provide a strong and unifying voice for first peoples. We are a new organisation. Les and I are the first elected co-chairs. We address you today on behalf of our colleagues on the board and our members.

We welcome the key provisions in this bill. In accordance with the government's commitment, congress welcomes no diminution of existing protections in federal anti-discrimination legislation in the consolidation process. We also welcome the retention of section 10 of the Racial Discrimination Act, which provides for equality before the law for people of all races; the simplification of the existing multi-staged definition of racial discrimination in section 9 of the Racial Discrimination Act, which should assist Aboriginal and Torres Strait Islander people to use these provisions more regularly; the shifting of the burden of proof in complaints; the provision of no-cost jurisdiction; explicit recognition of discrimination on the basis of a combination of attributes; the retention of the Aboriginal and Torres Strait Islander Social Justice Commissioner as a member of the Australian Human Rights Commission; and provisions that provided for compliance tools, such as reviews, action plans, compliance codes and certification of special measures.

Our submission did not attempt to address all the provisions in the bill but rather focused on issues of particular significance to Australia's first peoples. Nor have we sought to undertake a detailed legal analysis of the bill and will defer to NATSILS on more technical issues.

The five main points from our written submission that we would like to reiterate to the committee are: the importance of the retention of the racial vilification provisions, the need for recognition of the United Nations Declaration on the Rights of Indigenous Peoples, the special measures provisions as they relate to Aboriginal and Torres Strait Islander peoples requiring free prior and informed consent of those peoples, our concern around underuse of anti-discrimination legislation by Aboriginal and Torres Strait Islander peoples and our concerns around the proposed changes to the Aboriginal and Torres Strait Islander Social Justice Commissioner reports.

We would particularly like to remind the committee and the government that the United Nations Declaration on the Rights of Indigenous Peoples was formally endorsed by the Australian government in 2009 and congress expects the government to comply with the declaration and to the overall protection of Aboriginal and Torres Strait Islander peoples' rights both collective and individual.

Congress is firmly of the view that the declaration is an interpretive tool for existing human rights of the first peoples that are contained in the various international conventions that are listed in this act. We have previously argued for an amendment to the Parliamentary Scrutiny (Human Rights) Act 2012 to require all bills submitted to parliament to be accompanied by a statement of compatibility to the declaration in addition to the seven core treaties currently listed under the act. Congress strongly recommends that clause 3(2) of this bill be amended to include reference to the declaration, and that a subsequent amendment be made to the Parliamentary Scrutiny (Human Rights) Act 2012 to ensure consistency between the two pieces of legislation.

We would welcome any questions on those matters.

CHAIR: Mr Malezer, do you have anything that you want to add?

Mr Malezer : No.

CHAIR: Ms O'Brien, did you want to make a few comments?

Ms R O'Brien : Yes. I would also like to acknowledge the traditional owners of the respective lands on which we all meet today. I would like to thank the committee for the opportunity to give evidence today, and I will now provide some background on the NATSILS.

The National Aboriginal and Torres Strait Islander Legal Services—NATSILS—is the peak body for Aboriginal and Torres Strait Islander legal services in Australia. NATSILS and individual members have 40 years experience in the provision of legal advice, assistance, representation, community legal education, advocacy and law reform activities in relation to Aboriginal and Torres Strait Islander peoples in contact with the justice system.

Previously, in February 2012 before the bill was drafted, NATSILS made a detailed submission on the Consolidation of Commonwealth anti-discrimination laws discussion paper and we are pleased to see that many of our original recommendations from that submission have been addressed in the bill.

NATSILS would like to congratulate the government on the many positive ways in which the bill succeeds in streamlining human rights protections and improving access to justice by simplifying the legal process. For example, we very much welcome the new provisions relating to the definition of discrimination, the recognition of intersectional discrimination, the burden of proof and provisions relating to litigation costs. We also welcome the focus on prevention as evident within the bill, through the inclusion of a range of voluntary measures by which business can work with the Australian Human Rights Commission to create codes of conduct, action plans and certification of special measures.

While the bill is good in many ways, there is still room for improvement. It is disappointing that the opportunity to further strengthen protections and improve the effectiveness of the system has not been taken. Official measures are a well established part of the antidiscrimination system, and are an essential tool for achieving substantive equality. NATSILS is very pleased that special measures provisions have been retained in the bill. However, we do see an opportunity to increase the degree of clarity which surrounds special measures—which we see as important, given that special measures impact upon peoples rights—and to bring the Australian system better in line with international standards.

We are also concerned that the list of protected attributes has not been expanded to include a person's criminal record, social status or status as a victim of family violence. We think—given that as it is accepted that these forms of discrimination are prevalent in Australia—that when discrimination is well identified, such as these are, it is unacceptable that it remains lawful.

The opportunity to give the Australian Human Rights Commission the appropriate powers needed to enable it to fulfil its function in providing a more effective compliance regime has also been missed. For example, the Australian Human Rights Commission role could have been strengthened by empowering it to inquire into state and territory laws and practices, to institute proceedings in its own name when issues of fact or law affect a number of people, to assign each protected attribute its own commissioner and to enshrine the amicus curiae and intervention powers of the Australian Human Rights Commission as a right so that leave from the court is not required.

Representative's complaints to the Federal Court are also still prohibited. This is of particular concern for NATSILS, given that Aboriginal and Torres Strait Islander peoples experience disproportionate levels of disadvantage and multiple factors of discrimination, and yet have low levels of engagement with the antidiscrimination system. Allowing representative complaints to proceed to court could go a long way to addressing some of the systemic issues facing Aboriginal and Torres Strait Islander peoples.

The consolidation project has offered us a unique chance to look closely at our entire antidiscrimination system and to upgrade to a system of comprehensive protection against both long-established and emerging areas of discrimination. Thus far, the government has shown significant commitment to ensuring that this opportunity is not lost. However, we urge the government to take these last few steps to ensure that the present bill serves us not only today but also in the future. Thank you.

CHAIR: Thanks very much. We will go to questions now.

Senator HUMPHRIES: Could I direct a question to the National Congress of Australia's First Peoples. You refer in your submission to the obligation on the federal government under the UN Declaration on the Rights of Indigenous Peoples to obtain the free, prior and informed consent of first peoples in the making of laws and policies. As you point out, I think accurately, that is an obligation to which the Australian government has agreed by signing up to the declaration. What form do you think that free, prior and informed consent should take?

Mr Malezer : Thank you for the question. To begin, can we repeat that we see the declaration is actually an interpretive tool—it contains no new rights that are not available to all peoples of the world. The principle of free, prior and informed consent is a democratic process that applies to peoples and to representative parliaments in the way that they operate with the institutions and the way in which laws are made. In the case of indigenous peoples around the world, that is something that has been denied because of lack of political representation and involvement in the life of the state. That is why the principle exists of free, prior and informed consent.

To answer your question specifically, free, prior and informed consent might occur in a number of ways. Of course, we are all aware of the need to consult to get support for laws and to get the laws to be correct in the way that they operate. Similarly, for Aboriginal and Torres Strait Islander peoples that might be found in different ways. For example, we made some presentations to the High Court at the end of last year in relation to the alcohol management plans. One of the arguments we have under the alcohol management plans—this was in Queensland, on Palm Island—is that there is a Palm Island shire council which is representatively elected by the people, in the same way that all shire councils are elected in Queensland, and therefore free, prior and informed consent could manifest itself in the way in which the shire council made by-laws on alcohol. In fact, the council originally had its own alcohol management plans in the way that they operated. Therefore, we would have thought that the shire council's approval to a plan would represent free, prior and informed consent in the way that it does for other peoples.

We are faced, however, with national laws being made in Australia that apply to all Aboriginal and Torres Strait Islander peoples for various reasons and that would require a much more robust process. We saw an example with the Northern Territory's Stronger Futures laws, where the government itself embarked upon consultation programs. We think that is part of the process of consulting, but that is probably more a process of informing people and making sure that people are aware of laws that are being considered, how those laws might work and might affect them. The obtaining of consent comes back more to how the people voice their opinions.

Part of what the declaration also requires is a recognition of institutions of the peoples. There are representative institutions. As the congress we consider ourselves to be a national voice for Aboriginal and Torres Strait Islander peoples, but there are other organisations such as the national legal service that are represented here and other such bodies. In that sense, as the congress we would say to a national government making laws that we can advise about the extent to which they need to get that support and from which organisations that are there. Of course we are not the sole authority—for example, in the area of health there is already a Health Leadership Forum established, and so on.

I just want to stress that it is not an unusual process. The mechanisms are there. It is really a case of the government needing to act a little bit differently to the passage of laws that would apply to Australians generally, because the rights of Aboriginal and Torres Strait Islander peoples as first peoples and their being able to express a view as peoples is such an important part of the process. Again, it is democratic that people consent to the laws under which they live as part of the expression of the will of the peoples.

Senator HUMPHRIES: I think you describe a valuable process. In the case of liquor laws, having a local council that is directly affected by those laws and that is presumably made up mainly of Indigenous people, you get that democratic capacity built in in a situation like that. But in broader terms there really are not democratic mechanisms there except to go to representative organisations and hope that you are reaching the communities concerned by talking to them. Are you saying that there is no formula that ought to be used in all cases to ascertain what the pre, prior and informed consent of first peoples to the making of particular laws is?

Mr Malezer : I am saying that there is no one standard process. It depends on who is going to engage, what the benefits are and so on. For example, there does not seem to be a need to have robust consultations in relation to better housing programs. If that gets encoded in legislation, I think one can assume that providing better housing will have the prior informed consent of the peoples involved and so on. In fact, the initiative for that may very much come from the peoples approaching the government in relation to that process. However, we have had the experience in recent years where there is very much contention in relation to certain laws that are being made both at the national and at the state and territory levels, and in those situations I think more care and extra care has to be taken to get a representative voice.

I have to say that this goes beyond what we all experience: the media opinions that are presented where individual voices are heard. There are institutions that Aboriginal and Torres Strait Islander people have. Often these are community based organisations. We ourselves, in Congress, have not found in our operations any difficulty at all in being able to communicate both to peoples and from peoples using those sorts of structures.

Senator HUMPHRIES: Thank you.

Senator PRATT: I will ask both organisations this. I note that NATSILS have put a view forward about irrelevant criminal record, noting in particular that irrelevant criminal record should—according to your submission—be included in the list of protected attributes covered in the bill. I note that some attributes have gone forward and been included but criminal record seems to have come right out, when previously that set of attributes was all just covered by virtue of the capacity to make complaint. Even the capacity to make complaint to the Human Rights Commission now seems to be dropped. I know you are arguing for a complete reinstatement—not just for a reinstatement but for it to be given the same standing—and personally I would agree, but, if that is not achievable, should we not at least retain the current capacity to make complaint before the Human Rights Commission?

Ms R O'Brien : Yes, obviously our preference would be for it to be reinstated as a fully protected attribute in its own right, especially given that other Commonwealth laws and state and territory best practice have recognised it as an attribute for which people are really discriminated against. In line with the government's stated commitment to maintain the same levels of protection and given that criminal record comes under the International Labour Organization convention 111 and the Fair Work Act, and given that some states have similar provisions and that all except Victoria have spent conviction schemes, by reinstating it you would be bringing the Commonwealth law in line with best practice around the rest of the country. It is surprising that it is not in there.

Also, by reinstating it as a full attribute you would not only be bringing it into line with other state practice; you would be working towards achieving important social goals of reintegration of offenders and social inclusion. But I guess, if that is not possible, including the broader power to make complaints would be our preference.

Ms Broun : I think we noted in our submission, as did NATSILS, that Aboriginal and Torres Strait Islander peoples experience much greater levels of discrimination based on race, but they are also more likely to have other attributes on which they will be discriminated against. It might be homelessness, as pointed out in NATSILS—

Senator PRATT: In a sense, anti-discrimination on the basis of race is not effective if you have so many people that have another attribute for which they are not protected?

Ms Broun : I think that is the point, but I will let Rachel reply as well.

Ms R O'Brien : I completely agree. Given the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system, we see a huge barrier in terms of people coming out and trying to reintegrate into their lives and break the cycle of crime and disadvantage. One of the biggest barriers to that is discrimination in employment.

Senator BOYCE: My question is in relation to your answer about criminal record, which I think is a fairly elegant way of fixing the problem. My only question is: how does this work in practice, Ms O'Brien? Who decides that it is irrelevant?

Ms R O'Brien : That would be up to the courts, but I do not think it would be a huge difficulty. With the general limitations clause there are obvious conflicts between, say, a person having a record of sexual offences and working with children.

Senator BOYCE: Yes. That is a classic example. But if an employer has the criminal record of a person, they may choose to consider it relevant when it should be irrelevant. Do you take my point?

Ms R O'Brien : Yes, I understand. I guess it applies across the board in terms of the court applying the tests for discrimination and what is legitimate and proportionate and what is not.

CHAIR: Ms O'Brien, doesn't the relevancy of your criminal record also relate to the situation in which it may or may not be applied?

Ms R O'Brien : Can you repeat that?

CHAIR: Irrelevant criminal record depends, doesn't it, on the situation in which it is going to be applied?

Ms R O'Brien : In terms of which type of employment you are seeking?

CHAIR: Yes, that is an example.

Ms R O'Brien : Yes.

CHAIR: That is right.

Senator BOYCE: I was thinking of the situation where, 20 years ago, you stole something and you are going to work in a supermarket. Who is oversighting the employer in terms of deciding whether that is a relevant or irrelevant criminal record?

CHAIR: I guess it depends on what and how much you stole.

Senator BOYCE: Yes.

Senator PRATT: I also wanted to ask a question in relation to special measures. I note that there are some specific recommendations in line with international human rights law. Other submitters have also said that there should be a requirement for meaningful consultation in relation to special measures. I wonder if that is something with which you would concur.

Ms R O'Brien : Yes, to a point. I would also like to point out, in relation to the earlier question, that not only under the Declaration on the Rights of Indigenous Peoples, but in general recommendation 32 of the Committee on the Elimination of Racial Discrimination, they require the consent of the affected group. The point of that is that, given that the special measure is meant to provide a benefit to that group, it needs to be seen as a benefit to that group by that group.

When we talk about free, prior, informed consent at NATSILS we are referring to the definition under International Labour Organization convention 169, which has been interpreted as going further than consultation. It is not consultation on predecided actions. It is before anything has taken place, before anything has been designed and before any decisions have been made. So 'free' would be taken to meant that there is no force or pressure. 'Prior' would mean being consulted before any activity begins—

Senator PRATT: Yes, and failing to do that would undermine the legitimacy of a special measure being exempt from the capacity to discriminate in order to implement that measure.

Ms R O'Brien : Yes. In reality, in terms of how that would work, the Australian Human Rights Commission has some really good guidelines that interpret the international law into everyday language. I could provide that if needed.

To take an example from overseas, the way it works in Canada is that, constitutionally, they have a right in terms of the government needing to consult and accommodate the interests of aboriginal groups. In practice, it works similar to the requirement for free, prior and informed consent. Any sort of business, as well as government, which plans to undertake any act, project or policy that would affect an aboriginal group, undertake their own consultations and they then have to justify to government how they have achieved the free, prior and informed consent of that group. That is how it works in terms of oversight.

Mr Malezer : Can I also just comment on that as well, that the idea of prior and informed consent is really to ensure that the benefit is considered to be a benefit by the beneficiaries and where the beneficiaries may not be the decision maker on that thing. Again, it goes back to being a fundamental principle. That is a process by which government makes laws anyway and a democratic process but which has been denied to Indigenous peoples in particular in more recent history.

I want to raise one more matter under special measures. We could have missed something in the way in which the draft is presented. But in general comment 32, which Rachel has referred to, it also talks about concrete measures. The third committee identified that in the convention, under articles 1 and 2, it refers not only to special measures but also concrete measures. Special measures are temporary in nature in that they are meant to overcome a disadvantage and then not continue after that disadvantage is overcome. But concrete measures are actions taken to protect what might be inherent rights. This came up in the situation of Maori peoples' rights in New Zealand to foreshores and seabeds where the government took legislative action and called it a special measure. The committee corrected that by saying that concrete measures are where protection of inherent rights, in this case rights to a geographical area or to property, needs to be protected not on a temporary basis but on the basis that that is equality in relation to property rights or territorial rights that existed.

Our concern is that this draft may not address concrete measures and that one would assume that there will be situations in Australia where what we can call at the moment 'discriminatory steps' might be taken to ensure that there is a law for Aboriginal and Torres Strait Islander peoples to protect the rights of first peoples. We hope it will not be overlooked in the final legislation that the government considers.

Senator PRATT: Because failure to have consent for a special measure can, in effect, mean that you are implementing something that is contrary and that could in fact not even meet the principles of the anti-discrimination principles within the act itself.

Mr Malezer : That is correct. I think it also is a reflection on history, but it is correct. It is just to make sure it is a benefit and seen to be a benefit by those who are the beneficiaries.

CHAIR: With respect to this recommendation about a person's social status being included, how do you prove that in terms of staking a claim, for example?

Ms R O'Brien : Are you referring to what 'social status' would mean?

CHAIR: And its practical application in relation to this legislation.

Ms R O'Brien : We have agreed with the definition provided by the Human Rights Law Centre that 'social status' would mean:

… not only person's who are homeless, but also those who are at risk of—or recovering from—a period of homelessness.

So if somebody is homeless, unemployed or a recipient of social security payments. The Public Interest Law Clearing House Homeless Persons Legal Clinic has done some really good research into the types of discrimination that people experience as a result of their social status. They could be of great benefit in terms of identifying the examples where people are discriminated against and how that would apply under this bill.

Senator BOYCE: Ms O'Brien, what do you perceive to be the difference between social status and social origins and is there a way to blend the two to cover the concerns that you have in terms of homelessness, being a recipient of a government benefit et cetera?

Ms R O'Brien : We would prefer to keep them separate. If they are going to come under 'social origins' which, to me, is a rather loose term—I do not think many people are sort of clear—

Senator BOYCE: A lot of us are struggling with what 'social origins' means, given that it is not defined.

Ms R O'Brien : I think it is an extension of the boundaries between nationality, ethnicity, race and social background. It is another term that has come to try and tease those different ideas out. We would prefer to have social status as a different attribute, or, if it is going to come under social origin—given that there are a lot of people confused about what 'social origin' means—it should be clarified with a reference to what social status is, and whether it fits under social origins.

Senator BOYCE: Thank you.

Senator WRIGHT: Ms O'Brien, some submitters have raised concerns that the protected attribute of family responsibilities is not sufficiently broad to encompass carer responsibilities and have made the argument that in fact it may not be sufficiently broad to cover the kinds of kinship and extended family that often occur in Aboriginal and Torres Strait Islander communities. Is that a concern you have? There has been a suggestion that either it should be defined to include carer responsibilities or carers and carer responsibilities should be included as a separate protected attribute. What is your view about that?

Ms R O'Brien : We definitely have a view that carers, and the concept of family and relationships and responsibilities, can be very different between Aboriginal and Torres Strait Islander families and other families. We have not covered that in our submission because there is limited capacity and we focused on other issues—so I do not want to provide too much detailed comment—but that would be a concern for us if those sort of relationships were not going to be covered by the bill.

Senator WRIGHT: Ms Broun and Mr Malezer, would you like to comment on that?

Ms Broun : Examples might exist around Aboriginal and Torres Strait Islander people who are perhaps incarcerated, and who are denied access to go to the funeral of a family member where in a non-Aboriginal definition of family they would be denied access to that funeral or leave to go to that funeral. That can happen in a work environment as well, because it is not family or a close family member. So I think there would have to be some clarification of family responsibility. The meaning of kinship is also important because it has a broader definition for Aboriginal and Torres Strait Islander peoples and is likely to impact more in a work environment, but also in the other circumstance.

Mr Malezer : The way this is drafted at the moment, I think the intention is that these attributes be interpreted to be as inclusive as possible. That is the way it seems to be. But it may be a situation where, in the legislation itself, the intention might need to be clearer as to what that inclusion extends to. In this case, with social origin, we are actually perhaps talking about economic status and things like that. It will be important that the law is clearly intended to cover, rather than exclude, the sort of situations that we are referring to.

CHAIR: Other questions? I do not think so. It is pretty clear in your submissions to us.

Ms Broun : Thank you.

CHAIR: Mr Malezer, you look like you want to say something.

Mr Malezer : I think we have given adequate reference to this, but I want to underline again that we have concern about Aboriginal and Torres Strait Islander people being able to utilise the non-discriminatory provisions. We have seen that there is an underuse of the law and that that is going to be one of the continuing challenges that exists around this, and also that the role of the Aboriginal and Torres Strait Islander Social Justice Commissioner is so very, very important, and the reports of the social justice commissioner—at the moment there are two reports a year—are important. This is not a question about the work of the Australian Human Rights Commission; it is more a question of the need of our people to be able to have this communication through the Aboriginal and Torres Strait Islander Social Justice Commissioner, as well as to be able to see the human rights issues articulated on a constant basis. Thank you.

CHAIR: Yes, thanks for that. Ms O'Brien?

Ms R O'Brien : I would like to make one comment, in a follow-up to Les's comments, in terms of the engagement of Aboriginal and Torres Strait Islander people with the anti-discrimination system. We are very strongly in favour of representative complaints being able to proceed beyond the Human Rights Commission process and to the courts. We are quite surprised that it was not in the bill given that, in the discussion paper prior to the bill, a number of benefits of allowing representative complaints were identified. We would like to strongly reiterate that we would hope to see that in an updated version of the bill.

CHAIR: Thank you. Ms O'Brien, Ms Broun and Mr Malezer, thank you for your submissions and for the time you have given to assist the committee.