Australian Human Rights Commission

[16:50]

CHAIR: I now call officers from the Australian Human Rights Commission. Thank you for joining us. Secretary, thank you very much. Secretary, do you have an opening statement?

Ms Jones : Not today, Chair.

CHAIR: President, welcome. Thank you for joining us and for kicking off the Attorney-General's portfolio on this occasion. Do you have an opening statement?

Prof. Croucher : Yes, I do. As this will be the last appearance for three of the commissioners of the Australian Human Rights Commission before the conclusion of their terms, I would like to include for the Hansard a record of tribute to each of them for their contributions over their terms. I have provided a copy for you.

The Hon. Dr Kay Patterson AO has been the Age Discrimination Commissioner since 2016. During her term, she has advocated tirelessly for the implementation of recommendations from the Australian Law Reform Commission's 2017 report Elder abuse—a national legal response and has played a pivotal role in increasing community awareness of elder abuse and available supports, by encouraging the development of elder abuse training, delivering three elder abuse awareness campaigns and developing resources in 20 languages to raise awareness of the national elder abuse phone line. Dr Patterson has been a leading voice in calling for an enduring power of attorney law reform to prevent financial abuse.

Her reports What's age got to do with it and Talking about my generation have provided deeper insights into ageism across the adult lifespan, and she has encouraged intergenerational initiatives, such as the Centenarian Portrait Project by Teenagers, to dispel ageist myths and promote cross­generational cohesion. If I may add, the 100 Canberra exhibition opened on Saturday, and I would commend all senators on this committee, and indeed the whole parliament, to attend. Commissioner Patterson has been active in promoting the value of older workers through her work on the Collaborative Partnership on Mature Age Employment, development of an older worker resource hub and partnership on two surveys providing insights into older worker employment. Commissioner Patterson has shone a light on the issue of older women at risk of homelessness and contributed to aged-care reforms through the Council of Elders. Commissioner Patterson's term comes to an end in July 2023. I acknowledge and thank her for her contributions.

I would now like to read some words of tribute to Dr Ben Gauntlett. Dr Ben Gauntlett, who joins us today online, has been Disability Discrimination Commissioner since May 2019, and he is leaving this role on 30 June to take up a position of Deputy Commissioner of the National Anti-Corruption Commission. Dr Gauntlett's expertise has been invaluable during the COVID-19 pandemic, which had a disproportionate impact on people with disability. His leadership on the IncludeAbility project continues to create tangible positive employment outcomes for people with disability and their employers. The project lives on, with a suite of public resources supporting employers to create inclusive workplaces. Dr Gauntlett has made significant contributions to the rights of people with disability—for example, through his advocacy on inclusive housing and his leadership on the National Disability Data Asset and Australia's Disability Strategy. I thank him for his work and wish Commissioner Gauntlett, in his new commissioner role, all the best in that role.

The third tribute is to Chin Tan, who has been Race Discrimination Commissioner since October 2018. His term concludes in October. During Commissioner Tan's term he led the design and development of the newest iteration of the 'Racism. It Stops With Me' campaign, a national antiracism public awareness campaign, which has placed the campaign within the broader national conversation about race and racism, including raising awareness about systemic racism and the ways it can operate. In the aftermath of the Christchurch terrorist attack, Commissioner Tan led the Sharing the stories of Australian Muslims project. The project report shared with a broader audience, including policymakers, the priorities, concerns and important antiracism work of Australian Muslim communities across the nation.

During the early days of the COVID-19 pandemic, Commissioner Tan advocated for improved national data collection about the prevalence and severity of racism and the need for comprehensive national data on racial equity, including as it relates to health outcomes. He spoke up for the need for accessible and culturally appropriate information and responses to the challenges of the pandemic. Due to all these factors, the commission called for a National Anti-Racism Framework in March 2021. Commissioner Tan has led this work, consulting with experts, peak organisations and communities to outline national priorities and preferred approaches to developing such a framework. Commission funding has been secured from the government to progress a framework and to support further public awareness and education initiatives under the 'Racism. It Stops With Me' campaign. This means the important human rights work begun under Commissioner Tan's leadership will continue. I acknowledge Commissioner Tan's central role in this important national priority setting and thank him for his commitment to progressing it.

That concludes my tributes to the three commissioners who are leaving us before the next estimates appearance. Thank you.

Senator Watt: Chair, would you mind if I, on behalf of the government and the Attorney in particular, echo Professor Croucher's comments. We very much value the service of those commissioners and wish them the very best with their future endeavours.

CHAIR: Thank you, Minister.

Senator SCARR: Following on from the Minister's generous words, if I can also place on record the opposition's thanks to each of the commissioners. Commissioner Patterson, I've been a huge fan of your work, especially in relation to the issue of enduring power of attorney and elder abuse in that context. The president was raving about the exhibition that's on in relation to the portrait project, so I'm looking forward to attending that. Thanks very much for your contribution. Commissioner Gauntlett, I think you're a superb addition to the NACC, so all the best on behalf of the opposition in that very important role. Commissioner Tan, I'm very keen to have the opportunity to take you to meet my friends at Toowoomba's Garden City Mosque, which is due to be reopened, apparently, in either September or October. We're going to have to talk about your last day to see if you can have one final visit to Queensland before your term expires. Congratulations on that work you did in following that awful, horrific incident in Christchurch. Thank you very much.

President, I have some questions in relation to financials for the Human Rights Commission. Ms Smith, I'm not going to ask you any questions about remuneration, I promise, but I am going to refer to budget paper 1.2, if you've got that there with you, on page 167. Before I go through some particular questions, President, I know you went through a torrid time some time ago with respect to the financial stability of the commission. From your perspective, what's the current position of the commission from a financial perspective in terms of its capacity to meet all of its debts and obligations?

Prof. Croucher : From that perspective we are stable. I think, with the help of the government and help of the department, that stability is backed up very clearly by strong financial management and governance reforms.

Senator SCARR: Okay, so you're happy that you have all the governance procedures in place, as president of the commission, with the responsibilities you have, with respect to administrative function? You've got all the checks and balances in place. You're getting the regular reporting you need to be fully across the financial position of the commission?

Prof. Croucher : Yes, and we will be reviewing them in a regular and timely way to ensure that they are still producing that level of financial integrity that we need.

Senator SCARR: Excellent. Ms Smith, if we could go to page 167, I want to lead you through some of the figures just to get some explanations. Under total annual appropriations, it has got 'amounts from other entities' and then there's a footnote 'amounts received from other entities within the portfolio or from other portfolios'. That amount is going from approximately $13.8 million to $10.1 million into the 2023-24 year, the estimate year. Where has the money come from and what's the reason for the difference?

Ms L Smith : The amount that appears under amounts from other entities for both of those years is cash received for the sale of services for our work, and we describe that as our external projects. So these are external sources of revenue. I can tell you each of the sources of revenue, but, just by way of example, some of the biggest of those—

Senator SCARR: Perhaps you could characterise them first and give me a few examples to give me an indication.

Ms L Smith : Sure. We have a partnership with some of Australia's security agencies around workplace culture. So we have agreements with Australian Border Force, the ADF and the Australian Federal Police working on culture in those organisations. They're some of the more significant amounts.

Senator SCARR: Just in relation to those, are they long-term contracts or are they short-term contracts?

Ms L Smith : Those are long-term partnerships, and we find those to be very effective in terms of being strategic in the work we do and knowing how to have the most impact. They're very healthy relationships, those longer term ones.

Senator SCARR: In terms of revenue, that provides some kind of confidence you're going to get revenue streams under those contractual arrangements in terms of the short to medium term—is that correct?

Ms L Smith : Short to medium, yes. Up to five years I think most of them are. We have external partnerships with DSS and with DFAT. We run two projects in Laos and Vietnam with DFAT support as part of the bilateral human rights dialogues there. We have some new projects with the Department of Education, for example, around consent in schools, so that's a partnership that the government approached us about working with them on. So most of the external revenue is from Commonwealth government entities. There's a small amount from state government entities and then a small amount from non-government entities, like the Paul Ramsay Foundation, for example.

Senator SCARR: Any relationships with sporting bodies or private sector bodies, listed public companies—anything like that?

Ms L Smith : Not at present from my list of all the external projects, although we have done work in the past with some sport entities, helping them with workplace culture as well but on shorter term contracts.

Senator SCARR: Is there some sort of plan to develop that revenue generating part of the commission which is also providing an invaluable service? It's providing a service, obviously, but it's also generating a stream of revenue. Does the commission have any plans with respect to how potential opportunities could be identified in that regard and how you can get some sort of sustainability in terms of that revenue moving forward?

Ms L Smith : I would say, honestly, there are pros and cons in working through external projects. Obviously, when we're in partnership with other parts of the government or other organisations, there can be really great benefits. On the other hand, we do sometimes lose corporate memory when we're working on a fixed term contract and that network drops away—for example, when we're not able to take on staff on an ongoing basis.

Senator SCARR: President, what's your view with respect to these projects that are being undertaken, which provide a very good service, provide a stream of revenue, but, when I'm looking at the figures, $13 million out of $40.4 million—there's almost a dependency at the moment, when I'm looking at the figures, in terms of those revenue streams. How do you protect the independence of the commission whilst also seeking to get sustainability of funding, including through those projects?

Prof. Croucher : Thank you for your question. The word you used was 'independence'. That is the key word and that's part of the pros and cons calculation that Ms Smith referred to. We have a process for assessing which projects we consider, an internal committee as part of our governance structure and a strategic plan which sets our strategic priorities, so there's a degree of calibration for any proposed external partnership. If it aligns with priorities that we have already chosen independently, there can be a good synergy, particularly when it leads to ongoing partnerships, as Ms Smith referred to in the security arena. But the issue is the extent to which it has an impact on our independent choices. If we become overly reliant there is the danger of losing the institutional knowledge as projects conclude, so it's a carefully assessed decision. Where we can add value through the projects in areas of mutual interest that align with our priorities, using our priorities as the driving force—they can be of benefit.

Senator SCARR: As I move down through that table, Ms Smith, the only other point that leapt out to me was the average staffing level number, the ASL, increasing from 151 in 2022-23 to 180 in 2023-24. President, could you provide some context for that increase in staff numbers, what's driving that and where you envisage those staff will be deployed?

Prof. Croucher : In a way, Senator, you alluded to that by referring to the various partnerships. The number of core staff still sits around the 100 mark, which is our core funding, and the additional staff are attributable to the various projects, the project funding and the staff that's required to support the project funding. In terms of the breakdown, I will defer to Ms Smith, as chief executive, to give you further detail, if I may.

Ms L Smith : In addition to what the president has outlined, we'll also see an increase in staffing levels next year as some of the measures from the October budget start to ramp up in terms of implementation. Those two measures in particular are the National Anti-Racism Strategy and the Respect@Work implementation. They involve both some short-term staffing and some ongoing staffing.

Senator SCARR: I'm interested in the Respect@Work area. I was on the committee with the chair when we were looking at the role of the Human Rights Commission in terms of those reforms and, in particular, at the role of the commission in terms of having to consider whether or not certain workplaces met their obligations in that context. One of the observations I made to the previous commissioner was around whether or not there would be adequate staff available to the commissioner to actually discharge its legislative obligations in that regard. I'm interested to know how many staff out of the 29 are going to be dedicated to that important area.

Prof. Croucher : Ms Smith can give you some of the numbers, but, with respect to a couple of the new functions, the one to which you referred is sort of a scrutiny function.

Senator SCARR: It's both a scrutiny and an investigative function.

Prof. Croucher : Yes.

Senator SCARR: And that was one of the issues raised. But this is particularly in terms of how that function is resourced.

Prof. Croucher : That function hasn't commenced yet, and we have anticipated what it will look like in the initial phases, but that's one that will have to be reassessed on a regular basis. In terms of the actual numbers, do we have the specifics on that one?

Ms L Smith : I apologise. All I have in front of me is that there are 14.7 staff related to both of those new measures, and that's the National Anti-Racism Framework and Respect@Work. But I can get that number for you as we continue.

Senator SCARR: You can just take that on notice; that's fine. I'm just interested in that. I'll then take you to page 173 and section 3.1.1.

Ms L Smith : Yes, I have that.

Senator SCARR: There is a reference there to timing issues in revenue generation and delayed expenditure. The statement is that this is going to lead to an operating surplus in 2022-23 of $2.588 million and a technical loss in 2023-24 of exactly the same number. So what does that mean in practice for the commission? Is there any consequence flowing from that, or is that more an accounting measure, in terms of accruals et cetera?

Ms L Smith : It really reflects the two points on page 173. It is about two matters really. First is the timing of revenue received. For example, that funding for the consent survey in schools came through very late this financial year but will be implemented next year. Second, I'm not sure if you've heard this from other departments but, in ramping up those new measures, those new projects, we have struggled quite a lot with the recruitment market in getting people on board; it has taken longer than we expected. We sought authorisation from the Department of Finance to re-profile those funds forward to next year when we expect that what we couldn't spend this year will be expended next year and it will balance out, so it really is a technical difference.

Senator SCARR: President, what do you think is driving that? I know there are workforce shortages across the whole of the Australian economy. I would have thought the Australian Human Rights Commission would be, in the eyes of potential applicants, quite a prestigious body to work for. What do you think is driving the difficulty in recruitment?

Prof. Croucher : I can make some general observations. There is no particular science in this but there are certain elements that anecdotally have been driving it for us. Certainly you are right in considering us a prestigious organisation, and people who work with us often stay with us for very long periods of time. But the salaries that we can offer are not high in Australian Public Service terms. There is also a question of market interest in people who are well versed, for example, in respect Respect@Work reforms. There is a lot of private sector interest in attracting people who can assist the businesses with the positive duty and other aspects of the Respect@Work recommendations, and that is the same pool of talented committed young people, particularly young lawyers, who might be interested in that work. So there is quite a lot of competition, partly generated by the effectiveness of the implementation of the very reforms that the Australian Human Rights Commission championed.

Senator SCARR: So do you have any particular strategies around retention? To some extent, it is a difficult question, right? Because on the one hand it is good, especially for young professionals, to be exposed to as many different environments as possible and the fact that they have had the opportunity to work for the commission and then work in another capacity and then maybe come back to the commission or go on somewhere else. Do you have any particular views of strategies around retention of staff?

Prof. Croucher : In retaining staff, as I have observed, the staff who do work with us, particularly our permanent staff, our core staff, our ongoing staff, stay with us for a very long time, notwithstanding the salary differentials that I mentioned, because they are very committed to the kinds of work we do. So I think it is the initial recruitment at the moment, particularly the timing. When the budget measures came through, it was a busy time in the recruitment market, particularly in the Respect@Work implementation sector.

Senator SCARR: President, how do we go about replacing Commissioner Gauntlett, Commissioner Patterson and Commissioner Tan? How do we replace these commissioners? To what extent is the Human Rights Commissioner at all involved in the process of identifying prospective candidates, providing input to the Attorney-General's Department, coming up with role descriptions? How do you work together with the department in that regard? What is the process and what is the likely timetable?

Prof. Croucher : In terms of the process, I will refer to the secretary of the department because the department is leading that process. But the Australian Human Rights Commission over its many years now, over 40 years since it was originally set up in 1981, and heading towards 40 years since 1986 when we were put on a permanent foundation, has been blessed with commissioners of very high standing over those decades, to which Commissioner Gauntlett, Commissioner Tan, Commissioner Patterson and, indeed, Commissioner Jenkins recently all added their own particular distinct contributions. In terms of the process, I would like to defer, if I could, to the secretary.

Ms Jones : You may be aware that there were some amendments made to the Australian Human Rights Commission Act at the end of last year that set out a legislated requirement for a merits based transparent appointment process for the roles of president and commissioner. Through that process, I chair recruitment processes to fill those positions. We have initiated a process in relation to the Sex Discrimination Commissioner, which is subject to consideration by the government. The president was on the panel for that recruitment process, and I would anticipate she would be on the panel for all the other commissioner appointments

Senator SCARR: Who typically serves on that panel—you, the president?

Ms Jones : The secretary of the department always chairs the panel, so I chaired the Sex Discrimination Commissioner panel. It is my expectation the president will participate in all future commissioner appointments.

Senator SCARR: Is there anyone else?

Ms Jones : The Public Service Commissioner is always invited and asked if they want to participate in those panels. Certainly the previous Public Service Commissioner did participate in the appointment for the Sex Discrimination Commissioner as did another secretary, the secretary of the Department of Veterans' Affairs participated in that panel.

Senator SCARR: Was there a representative of the Attorney-General or was it arm's length from the Attorney-General?

Ms Jones : It was arm's length.

Senator SCARR: So the next step in the process, presumably there is advertising, the committee gets together, potentially interviews a short-list of candidates and you make a recommendation for the Attorney to consider. Is that correct?

Ms Jones : We prepare a report that would put forward recommendations as to suitable candidates.

Senator FARUQI: I have some questions for Commissioner Tan. As you know, a few day goes ago journalist and writer Stan Grant announced that he would walk away from hosting Q&A following the intense racist hate on Twitter after his appearance on the ABC's coronation coverage. There was also relentless criticism and hate mongering in News Corp media, including Sky News and The Australian targeting Mr Grant. Shamefully and sadly, this is nothing new, because day in and day out First Nations people and people of colour are made targets of disgusting racism. Commissioner, given this, have you issued a public statement about this matter?

Mr Tan : On this matter, in fact, I have been interviewed by the ABC, specifically on this topic about Stan Grant asking for my opinion on this matter. I am not sure it will be in the media today but I suspect they will have some snippets of that. The interview I did was in respect to my thoughts about what has occurred. I expressed my deep sorrow and sadness that it has come to this conclusion that a man of his standing would be in some respects run out and had to step down from a very difficult position. He is obviously traumatised, and I wished him well. The point we wanted to make is this: that racism is never acceptable anywhere at any time. But what was available was an opportunity. In a situation like this—and I mentioned this in today's interview—what Adam Goodes did ten years ago for football might be what Stan Grant would do for the media, because a lot of what we have been doing is looking at aspects of our community and racism that exist. We have, in a framework that I'm trying to create, a very strong element about media accountability and media enforcement issues and regulations. This is an opportunity, as I've said in the interview, to shine a torch back at the media hoping that the media industry and its players will take this seriously and consider the harm it is doing to not only its own industry and to protect its people within but more so within the community and creating an environment where it doesn't perpetuate stereotyping and reporting that racialises issues.

Senator FARUQI: Commissioner, this is a very prominent example of the racism that plagues this country. The National Anti-Racism Framework scoping report, obviously prepared by your department, made some important findings on media regulation. Given that, I do request that a public statement coming from the Race Discrimination Commissioner, who is responsible for combating racism in this country, would be a very useful intervention to give a clear message to the community that this is unacceptable, because it keeps happening again and again. That would be my request to you.

Mr Tan : Thank you, Senator, for that advice. We'll take that into serious consideration.

Senator FARUQI: On Friday, when Mr Grant revealed that he was stepping back, he did raise concerns about ABC's handling of the racist abuse and said that no-one at the ABC:

has uttered one word of public support. Not one ABC executive has publicly refuted the lies written or spoken about me. I don't hold any individual responsible; this is an institutional failure.

Do you believe this is an institutional failure, Commissioner Tan?

Mr Tan : No. We've always taken a position that racism exists across all the spectrums of our community, including at an institutional and systemic level. We have raised that in the campaign that we have launched, Racism. It Stops With Me., highlighting again and again about systemic and structural racism. So we do believe that this is an issue that needs to be looked at. Racism doesn't only occur on an individual basis; it occurs at a structural, systemic level as well, and it's important that institutions recognise this and offer the support not only to its community that's within its workplace but to provide the kind of framework and role modelling important to sustain a practice that's anti-racism.

Senator FARUQI: Have you written to the ABC about their handling of this issue and your concerns and what they should do?

Mr Tan : Not specifically in this instance. We have written and collaborated with the ABC on a number of instances in the past and will continue to do so. We have to be very careful as well that this may be a subject of a complaint. It goes to the authority of the commission that we obviously don't prejudice the outcomes of any such kind of complaint.

Senator FARUQI: But, Commissioner, it is your job to combat racism.

Mr Tan : I understand that, but there's a fine balance in ensuring that people who have the opportunity to complain are taken seriously and that their trust is not in any way breached.

Senator FARUQI: Commissioner, as you know, the ABC invited Mr Grant, as a Wiradjuri man, to participate in its pre-Coronation coverage to discuss his own family's experience and the legacy of monarchy. In my opinion, and based on the experiences that I and people of colour and many others have had, it was quite predictable that Mr Grant would be the target of racist backlash for speaking the hard truths about monarchy and colonialism. Do you think the ABC proactively did enough to protect Mr Grant in the wake of the coverage?

CHAIR: Just before you answer that question, of course this isn't ABC estimates, so you'll understand that we're asking you in respect to your role, and we have an opportunity to speak to ABC later in the week.

Mr Tan : I totally agree with that, Chair. That question should obviously be posed to the ABC.

Senator FARUQI: I'm asking you as the Race Discrimination Commissioner, who has the responsibility to combat racism.

Mr Tan : I can't speak on behalf of the ABC, but I can make an assessment about the ABC response. Looking at the totality of what ABC has done in the past, what it stands for, the values it has advocated and these sorts of programs put in place, I believe it obviously has, in my assessment, still a long way to go. But it is an institution that is making a strong effort to try and deal with racism within its own community.

Senator FARUQI: It is becoming more and more clear that there isn't enough support provided to journalists of colour or Indigenous journalists in media organisations across the board. Your report itself highlighted that. Do you think there needs to be an audit of media organisations in terms of what antiracism measures they have and what support they provide to their staff, given that this keeps happening again and again?

Mr Tan : I would welcome that. It has to be done in conjunction with the media industry and the players. We would certainly use this opportunity, because, out of this crisis and the trauma that has been inflicted on people, particularly in Stan's case, I believe there's an opportunity now to turn attention and to seek the support and collaboration of the media entities and say, 'Can we do something now to try and address some of those issues?' I would be very keen to take this forward.

Senator FARUQI: The board of the ABC is made up of people who are utterly unrepresentative of the people who make up Australia. It's a similar situation across the board, where media organisations' leadership teams and executive do not represent the communities that they do their journalism in. Does this impact how media organisations deal with racism, given that not many of those in leadership positions have the lived experience?

Mr Tan : We've taken the view that cultural diversity is important in any organisation, within any framework, because of the benefit it offers in terms of diversity of opinion and the capacity to introduce different understanding and attributes. Organisations increasingly are recognising that this is an important factor, but we're still a long way, right across the board, from creating a situation where industries, companies and corporations are taking this on board. It is ongoing work that we're doing, as you appreciate, and we have had discussions in the past about how we can strengthen this. But I think, every time something like this occurs, it's a door-opener for us to break in and then create more opportunities. But cultural diversity, even in the high echelons of our communities, is terribly important. We're not there yet; in fact, we're a long way off. But we're chipping away at that.

Senator FARUQI: But how many times will First Nations people and people of colour have to leave their jobs, step down and be silenced before we get there? Obviously there's an urgency to this. Wouldn't you agree with that?

Mr Tan : I agree. There's a lot of work to be done in this area, and I hope that we will get the continuing support from the government and right across communities to do the work we need to do, because we aren't well resourced, as you probably understand, to carry on much of the work we do. We certainly don't have the enforcement or investigative power to pursue some of the things we want to do.

Senator FARUQI: Isabel Lo, founder and co-chair of Media Diversity Australia, yesterday wrote this:

So many journalists of colour pin their hopes and aspirations on a figure such as him—

Mr Grant—

a man with a reputation for helping pave the way for up-and-coming talent from diverse backgrounds. But if even he can't survive, what hope do the rest of us have?

Do you think what's happened and the repercussions of it will have an impact on journalists of colour?

Mr Tan : I think Mr Grant has expressed a view that he's not going away for good; he's coming back. It's time to obviously take care of himself, refresh and reinvigorate, and I hope he does come back, and in a stronger way. What he has done is to create a very important focus on an area that needs to be tackled—and tackled, perhaps even more importantly, by someone like him who is able to play a majer role and lead us in this particular area. It's never acceptable—and, can I say, it's not just Indigenous journalists who are facing those sorts of discriminatory practices. It's right across.

The question is: how do we get people from different backgrounds the protection they need and the opportunity they can to create the kind of framework they would need to prosper and to advance? One of the things that you'd probably appreciate, and we've given you materials on this, is that the National Anti-Racism Framework has a major focus on media representation issues. We want to make this a linchpin of the things we want to do—to say, 'How do we reform the media industry?' It is one of the last bastions, in my view, that hasn't been tackled properly. It's hard to invite the media industry players to come and sit and talk to us, because it's always been a difficult forum for us to get those cooperative measures in.

Senator FARUQI: What actions will you take today, Commissioner Tan, to protect journalists of colour and First Nations people?

Mr Tan : The first port of call is to work with the media industry. To get some form of self-understanding, introspection and self-regulation is a good place to start.

Senator FARUQI: I have a couple more questions on another topic, which is the international—

CHAIR: I do need to hand the call over. I can come back to you. We do have other senators waiting for the call as well.

Senator FARUQI: I just have a couple more questions. Is that alright?

CHAIR: No. I'm giving you blocks of time, and I let you know that you were coming to the end of yours. Senator Liddle, you have the call.

Senator LIDDLE: President, in 12 months of this government we've seen the removal of the CDC without a transition plan. We've seen alcohol restrictions lifted in the Northern Territory and record investment now in ameliorating the situation there. There wasn't a social impact assessment done with those changes. I'm wondering: are you involved or resourced in being able to do some work in this area to understand the wellbeing of children in the Northern Territory impacted by this right now?

Prof. Croucher : Thank you for that question. In terms of the specific question focused on children in the Northern Territory, I know the National Children's Commissioner has been active in her work to consider that to the extent that she can within her portfolio. Our mandate is a very wide one, and the resources for each commissioner are very constrained, so their priorities within their resources are necessarily constrained and focused through our strategic plan priorities, as I mentioned before. I know the National Children's Commissioner has been a loud advocate across a range of issues going into children's wellbeing. Perhaps if you would like to direct the question on the specific wellbeing of children to the National Children's Commissioner, I would refer that question to her.

Senator LIDDLE: That would be fine. Thank you.Commissioner, I assume you heard the question. I'm keen to understand what sort of wellbeing assessments you understand have been done or should be done in relation to the impact of this on children in the Northern Territory.

Ms Hollonds : I think you also asked about whether the commission had been given resources to do that work, so I can confirm that there have been no resources given. But I am aware that there is significant Commonwealth investment, particularly into Central Australia. I've been in close touch with the regional coordinator, who is responsible for a lot of the co-design work on the ground, and indeed with the Northern Territory government and the NIAA, to try to assist as much as I can.

Senator LIDDLE: We're talking about an investment of some $350 million in Central Australia. I want to understand: in your opinion, how do we ensure that we understand where the children are at now in order to understand where those resources should go for greatest effect?

Ms Hollonds : I think it is important to have a look at the data that is available. I know that there have been some questions about how comparable that data is to other jurisdictions' data, because particularly child protection data is collected in slightly different ways from jurisdiction to jurisdiction. I think it's really important that we start to get some strong data that we can use. We also need to do what I understand the regional coordinator is working hard on now: to really understand what it is that the children and families say they need by way of the services on the ground. To give you an example: in 2021 I did some consultations for a report called Keeping kids safe and well: your voices and I heard that, particularly in the Northern Territory, kids and families say that they really can't get the help that they need. Not only do we know that they've got pre-existing intergenerational issues that they're dealing with—and I don't think I need to list what all of those are; you would be familiar with those—it's also the lack of access to help. Kids tell me that the adults in their families couldn't get help for drug and alcohol problems, mental health issues, domestic and family violence and so forth, and that obviously has a flow-on effect to the wellbeing of the children. Financial insecurity, housing problems—all of that plays into it. So it is my observation that there are significant failures in those basic systems across health, education and social services that need to be addressed, and kids and families need to be listened to about how they need to be helped. They need to be part of the service design process.

Senator LIDDLE: I want to talk to you about the data, because collecting data and having the structures to extract meaningful, timely data costs money. Where do you get your data from about the Northern Territory? It's not easy to find.

Ms Hollonds : No. Recently I was able to get data from Territory Families directly. That's where I got my data from.

Senator LIDDLE: What was your assessment of that data? Did it have any surprises in there? Was it something that surprised or alarmed you? The question goes to the amount of investment that's going in there and how that assessment is applied for priority outcomes.

Ms Hollonds : I'm not sure that I would comment on the actual quality of the data itself. I wasn't, in that sense, surprised; however, I am aware that there are staffing shortages that they are experiencing, and I am advised that Territory Families really carries a lot of that burden on their own. It is my view that one of the things that needs to happen is the burden being shared more broadly across Education and Health as well. We really need to bolster what are the basic public service systems to ensure that we get better effect, as I said earlier, in terms of the redesign of those services.

By the way: it's not just in the Northern Territory that we need to do that. It is my view that we need to do that right across the country, that a lot of the problems we're seeing with child protection and, indeed, with youth justice crises that we're experiencing are an outcome of the failure of those basic public service systems.

Senator LIDDLE: I agree with you that we've seen issues that have arisen in other places as well. How do we ensure that those children who have experienced issues or even the parents that have experienced issues as children—what do we need? What sort of data do we need to really understand the extent of the issue that we are trying to address here?

Ms Hollonds : I think data is part of the solution but not the only solution. Even without the best data available, we know that there are problems, so I think we really need to look at the fact that babies are being born into families where there are very serious pre-existing issues. I feel like we haven't been able to invest in intensive-enough services at that early stage. We allow the problems to escalate until, really, it's too late. I think it is about recognising the level of trauma in the families that the babies are being born into now and making sure that we've got those intensive-enough services at the upstream end. That's the problem.

So, yes, I think the data is part of the story. We need to fix the data. We need to invest in getting better data, and I know that the Australian Institute of Health and Welfare is certainly involved in trying to improve the datasets across the country. It is my view that, in some ways, we kind of know that there are gaps where we're not actually getting in early enough with these families, particularly in remote communities.

Senator LIDDLE: In terms of focusing on prevention, I haven't seen a lot in the material that I've looked at that was really about children and prevention—not early intervention, not the ambulance but actually preventing people from climbing the steps before they get to the fence that might help stop them. You have just said you haven't got any additional investment, despite the evidence being really clearly in front of us right now. What do we need to do to understand the scale of that issue in terms of supporting early intervention for parents and children?

Ms Hollonds : I think we need to do more at the front end. I think there are a lot of measures in there. I did see that there were some measures about fetal alcohol spectrum disorder, and that's good, because I understand the rates of FASD have gone up in Alice Springs. But the service models of these services on the ground need to change, and I'm not seeing that. We need to keep kids in school. The education system needs to be reformed so that kids stay in school longer so they're not out on the streets and they can get that early intervention in their communities before things get too bad. That means health services going in early into remote communities, for example, rather than being more weighted towards the hospital end, the tertiary end—the ambulances, as you say, picking up the pieces at the end. We need to shift the investment upstream.

Senator LIDDLE: How do you, as the National Children's Commissioner, get involved in those decisions, those discussions and the kinds of things from a broader national perspective about what needs to change, given the incredible intellect, resources and experience that is sitting right beside you that can contribute to those better outcomes?

Ms Hollonds : Within the limited resources that I have available, I do absolutely whatever I can. I've reached out over time to, as I said, NIAA, the regional coordinator and Territory Families. I've participated in the tripartite forum in the Northern Territory, which is about the reform of all of these systems. But I don't have any formal role as such to progress that work; nor do I have the resources.

Senator LIDDLE: Would that be the same for Commission Oscar? I recognise Commissioner Oscar's contribution in this area, particularly around social justice and where children are ending up as a consequence of some of these issues.

Prof. Croucher : Commissioner Oscar is online, and we could call upon her. You could call upon her, Chair, if you consider that appropriate.

CHAIR: Commissioner Oscar, are you on the line there? We can see your icon.

Ms Oscar : Yes, I am here with you.

CHAIR: I think Senator Liddle had a question for you.

Senator LIDDLE: Thank you. I know you've been listening to the discussion. Given your social justice work, and recognising that not all of these children I am referring to are Aboriginal or Torres Strait Islander children—I'm talking about all children—can you talk to me a little bit about the amount of work that you could do to actually support, if we're talking specifically about the Northern Territory in this instance, improving the outcome for those children who are already on a trajectory or those children who aren't on that trajectory?

Ms Oscar : Thank you to my colleague, Commissioner Hollonds, for her work and the partnerships that she is involved with in supporting people on the ground, particularly in the Northern Territory but also across the country when it comes to the safety, protection and advocacy for all children—Indigenous children as well.

We're talking about human beings here, with issues from birth to grave. We're talking about layers, and complex layers, if we are focused on Indigenous families in communities across the country and what their issues are. We're talking about parents—so adults—who have inherited trauma, and, as you pointed out, we're also acknowledging that some of these children are born into families, to parents, who have unresolved trauma.

So how can we work better in providing the prevention at the early end? I want to acknowledge here the great work that many families do do on the ground. As I've engaged with women across this country, I have heard from them their efforts around the advocacy of their issues and to be listened to and responded to. We're talking about a whole raft of issues—so a whole raft of needs.

I think what you're really helping us to elevate here is the need for serious dialogue, Senator, in how we reform the ways in which current systems are responding in an ad hoc, piecemeal way that guarantees that children are continuing to fall through the gaps. I would say: here is an opportunity at this point in time for all of us to develop the partnerships that Commissioner Hollonds has established and build on those but include the full participation of Aboriginal and Torres Strait Islander people around the discussion and the designing of the responses.

But bring in the FASD experts, because clearly the commentary made by the Premier of Western Australia around the children at Banksia Hill and the Banksia Hill riot suggested that somehow these children are to blame for the trauma that they carry and that FASD is seen as an excuse for their behaviour. We're talking about brain based disability—neurodevelopmental disorders. It is no fault of these children, and I think what you're helping to highlight here is the great need for us to focus far more seriously and at depth and more expansively on this topic of how we genuinely respond to protecting children, guaranteeing them the supports that they require for the trauma that they've inherited.

Senator LIDDLE: Thank you, Commissioner Oscar. I appreciate that.

CHAIR: Senator Pocock.

Senator BARBARA POCOCK: Australia is a signatory to international conventions that include employment and care rights, including the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Some states and territories have enshrined these rights in legislation at the state level—for example, the ACT. However, at federal level, employment rights are only addressed through industrial legislation, not human rights legislation. So I'm wondering: has the Human Rights Commission investigated implementing a right to employment and a right to care at the federal level?

Prof. Croucher : I think I'll take that question. The work that we've been leading over the last four years has produced recently the second position paper, which is focused on a human rights act for Australia. We released that on 9 March, and it is central to the inquiry that is now before the Parliamentary Joint Committee on Human Rights, which is looking at a human rights framework for Australia and referring, in particular, to whether Australia should have a human rights act, by reference to our model.

The conversation is a very live one. The kinds of employment rights—around a whole lot of rights—and ensuring that there is that positive understanding of what rights are, that there is an embedding within the Public Service of a rights-mindedness approach—using a human-rights approach to decision-making—providing an avenue for ensuring possible remedy for breach of those rights—it is a very well-thought-out structure, and we're engaged actively in consideration of those very things, including some key economic, social and cultural rights as reflected in the ICESCR convention, to which you referred, as well as the processes of parliamentary scrutiny and accountability, ensuring the progressive realisation elements are factored into statements of compatibility. I can commend our paper as giving a very thorough consideration of the types of issues that you've asked about, and I'd be very happy to provide you an in-depth briefing about the various aspects of that model.

Senator BARBARA POCOCK: Does that paper directly address the question of the right to work and right to care?

Prof. Croucher : It includes those rights in certain aspects, yes, and how the broader framework of human rights considerations gets built into the structure of policy, decision-making, legislation and, indeed, interpretation in court.

Senator WATERS: Thank you all for joining us tonight. In relation to the appointment of the new Sex Discrimination Commissioner, in your responses to some earlier questions I think you said you've initiated the process and you, President, were on the panel. What is the time frame for when the announcement of the new Sex Discrimination Commissioner will be?

Prof. Croucher : I can defer that to the Secretary but, in the meantime, to ensure there's no lacuna in the responsibilities, I'm carrying that hat in the interim.

Senator WATERS: I see. They're big shoes to fill, but I've no doubt you'll do well.

Prof. Croucher : Thank you.

Ms Jones : I can advise that the process is well advanced. It's a matter for government in terms of the specifics of the timing, but I think I can say it's progressing, so I would expect an announcement shortly.

Senator WATERS: I'm not familiar with the lingo: does 'shortly' mean a couple of weeks?

Ms Jones : It's a matter for government, so I can't be precise, but the process is well advanced.

Senator WATERS: Do you have a preferred candidate or are you still at a shortlist stage?

Ms Jones : I can say that the shortlisting and interviews have happened, and a report has been prepared for government consideration.

Senator WATERS: With the recommended candidate?

Ms Jones : The panel has made recommendations to the government.

Senator WATERS: Great—I can't wait to see who gets that important role. Despite there being that lacuna—although the President is stepping in, in the meantime—has work commenced on the initiative funded in the October budget to support victims-survivors of historic workplace sexual harassment, which was recommended under both the Respect@Work and the Set the standard reports?

Prof. Croucher : Yes, it has. We have stood up a team that is working on that particular measure. Ms Smith, are you able to describe the numbers that we've appointed to that? It is in train. It was one of the measures that was funded. We have a dedicated team that are working on the process—at the moment, they're in training, working up to the public launch of that function.

Senator WATERS: Do you have a time frame for the public launch of that function?

Prof. Croucher : I can't tell you off the top of my head, but we can probably get back to you about that in the course of the hearing. I'll call on Ms Smith to give a bit more detail.

Ms L Smith : We have two staff currently designing the historical disclosures process. There's a strong interest in having the incoming commissioner being part of that process and travelling around the country to be part of those consultations. The work is certainly under way, so it will be ready to go when the new commissioner is in place.

Senator WATERS: Great. Good to hear. Can I also have an update, please, on the recruitment of the director of surveys of schools and school students on consent education. Is that work still on track to commence the survey in 2024?

Prof. Croucher : Can I check on that one? The National Children's Commissioner is leading that work. Perhaps she can assist on this.

Senator WATERS: Yes please.

Prof. Croucher : And any other details we can chase as we go.

Ms Hollonds : Yes, I am leading that project. The contract was signed in April, and we are actively recruiting now for the core team. We expect that will now ramp up fairly rapidly. We are actually hiring two directors to lead that project. It's a very complex, very large project that will go over the next two years.

Senator WATERS: That's good news. I note that the government last week announced its advisory committee on consent education. Is there going to be an interaction between that advisory committee, and will either or both of the two directors work with that committee on the design of the survey that the commission will run?

Ms Hollonds : Sorry, I didn't quite catch which committee. Are you talking about the Teach Us Consent funding?

Senator WATERS: Yes, correct.

Ms Hollonds : I would expect so, absolutely. There is a youth advisory group being formed as part of that budget measure, as I understand it. Clearly they should be aligned, going forward.

Senator WATERS: Will that new youth advisory group have input into the design of the survey?

Ms Hollonds : Yes, indeed we have already approached other youth advisory groups that are in existence who have expressed interest in helping us formulate the questions.

Senator WATERS: Great. That's coming along nicely. Given its role in the Change the course review on sexual assault on campus and colleges, has the commission been consulted as part of the Universities Accord consultations?

Ms Hollonds : I will pass that back to the president.

Prof. Croucher : I can't give you a direct answer on that. May I just take that on notice to provide a proper answer?

Senator WATERS: That's fine, thank you. Commissioner Hollonds, before you leave the table, I think these next two will be for you. Have you briefed the relevant ministers on the results of the Australian Child Maltreatment Study? If so, who have you met with and what have you been calling for them to do in response to that study?

Ms Hollonds : No, I haven't briefed relevant ministers. It's not our study. It was a study undertaken by QUT and a consortium of researchers. However, I was on the advisory board for that study and I have taken, obviously, a very keen interest in it. I have spoken with ministers and departmental staff about the implications and what will be the government's response to what are very significant findings—essentially, that the problem of child maltreatment is bigger than we thought. In my view—and I have said this publicly—in a rich and developed country like Australia, such high levels of child maltreatment are a sign of the failure of basic public service systems that are meant to support kids and their families. They are too fragmented, they are poorly designed, and we are not getting the help to the people that really need it.

Senator WATERS: Yes. Strong agree. Last question from me. The budget allocated, I think, $200 million to develop partner initiatives to address entrenched community disadvantage. Would you like to see those initiatives directed towards childhood disadvantage? Essentially, what initiatives do you think should be explored in response to that study to fix the issues it identified?

Ms Hollonds : Absolutely. That budget initiative should be focused on very early prevention and early intervention and the coordination of services in communities that need to wrap around kids and families who are clearly struggling. We know this. We know this directly from what kids and families tell us. We will need other measures as well, because that will only be in certain communities; that's not everywhere. I think what we need to be aiming for is that we actually build a system of support so that we can then be applying targeted services for those who need extra. So Australia still lags the developed world in child wellbeing. We rank 32nd out of 38 OECD countries. We need to step-up as a country when it comes to supporting kids and their families.

Senator WATERS: Thanks very much, President. Thanks for the great work the commission does.

Senator SCARR: President, first can I say how much I admire having a witness before this committee who uses the word 'lacuna'.

Senator WATERS: Indeed. I second that!

Senator SCARR: It is very admirable.

Senator Watt: There's a novel by that name. There's probably more than one.

Senator SCARR: Absolutely. President, I have some questions in relation to the Human Rights Commission's engagement with respect to the question of the Voice. I just want to say, to pre-empt those questions, that I deeply respect the independence of the Human Rights Commission, and I also deeply respect each of the commissioners on the Human Rights Commission. I will introduce my questions in that way. The first question I have is that on 30 March 2023, the Human Rights Commission put out a statement, or you put out a statement, the first paragraph of which noted:

The Australian Human Rights Commission welcomes the Federal Government's introduction of Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 to parliament.

It then provides the position of the Australian Human Rights Commission.

My first question is in respect of process. In terms of the Human Rights Commission, there's the president and then there are seven commissioners. How does the Human Rights Commission establish its position with respect to a question such as the referendum and, in particular, in relation to the referendum?

Prof. Croucher : Thank you for the question. Under our legislation, the commission is defined as being the statutory officeholders as a set.

Senator SCARR: Correct.

Prof. Croucher : So it is the statutory officeholders, from time to time, that comprise the full set of the commission. Under the act there is an obligation to work cooperatively, so far as reasonably practical—that's a statutory obligation.

Senator SCARR: Subsection 8(2).

Prof. Croucher : That's correct!

Senator SCARR: But it does say:

The members must co-operate with each other to achieve common objectives, where practicable.

Prof. Croucher : Yes. It's a broad brush. It used to be 'to work collegiately'. It was changed in 2017 to a different verb, but the same general sentiment. There is also a provision for voting, if it's required. Under section 44(7) I preside at commission meetings and, if there is ever a necessity for having a vote on issues, then I carry the casting vote. That's the administrative structure within the legislation about the commission and decisions.

With respect to this particular matter over a period of two long conversations staged out over a couple of weeks, the institution reached a position. It was not a unanimous decision. As the legislation and framework of decision-making within the commission enables within that framework, there is a respectful engagement on issues. On this occasion, it was not a unanimous decision as to that position, but no commissioner was constrained from voicing their opinion.

Senator SCARR: Okay. You made reference to two long conversations over two weeks. Did those conversations occur in the context of formal section 44 meetings?

Prof. Croucher : We have quarterly meetings that are supported by a secretariat and are a process of all of the working parts of the commission, particularly the financial parts and the complaints and legal and policy. There is a reporting mechanism that articulates up to our quarterly meetings. In addition, the commissioners have a fortnightly structure of meetings, which operate in a different way from those quarterly ones, which are the apex of all of the other institutional moving parts that line up with our financial calendar and so on. So we do have fortnightly meetings as a group that run for 1.5 hours and have an agenda, as necessary, that lines up with that cycle of meetings that are held quarterly, but also responsive to other issues that we need to discuss as a group.

Senator SCARR: Okay. However, you did mention in your comments about the structure of the commission that the commission comprises the president and seven commissioners and that the process in terms of the commission to reach a majority view is under section 44. Was the view reached by the commission reached in a specific meeting convened under that section that provides for a majority view?

Prof. Croucher : The meetings we have fortnightly have a less formal structure to them, but on this instance there was a clear indication of the subject matter that was discussed. The goal was to reach a statement of the commission framed around the Uluru Statement from the Heart. That was the clear agenda for the meeting. There were two meetings a fortnight apart, including revision of the proposed text that was under consideration, taking on board the various comments that were provided at that meeting and thereafter. The object of the second meeting was to end up with a conclusion about support for the statement that had been considered in draft form.

Senator SCARR: I appreciate that, but I come back to my original question. The legislative scheme provides for a president and seven commissioners and, as you rightly pointed out in your introductory comments, in terms of the commission coming to a view there is a process under section 44 of the act for a formal meeting to be convened where consideration is given to a particular question, and a majority can rule the day in a section 44 meeting. Why was a meeting not convened under section 44?

Prof. Croucher : All meetings of the commission with the commissioners meeting together could amount to a meeting for that purpose. Our fortnightly meetings have an indicative agenda. This certainly had an agenda and a draft paper for consideration. The outcome of those meetings was anticipated in messaging from me—by the end of the second meeting the object was to reach a concluded view about the statement that had been considered in draft and revised in the period between those two meetings.

Senator SCARR: President, is it your evidence that the meetings that were held constituted formal section 44 meetings, which provide for the majority of the commission to be able to establish what the position of the commission is?

Prof. Croucher : Yes. Under the act I can call a meeting—that is my authority as the presiding person within the act. In a meeting that is called regularly by me as a fortnightly meeting with my commissioners if we need to come to a decision about anything when there is an agenda, a clear draft paper and an object clearly articulated, as in seeking to achieve agreement on a particular issue, and if formal consensus is not possible then the views of the various commissioners were determined. By the conclusion of the second meeting I considered that there was clear support for the statement, with the clear expression by one commissioner that she did not agree with the position.

Senator SCARR: Okay. Did the papers for the meeting actually refer in any way to section 44 and the fact that section 44 provides that a majority of the commissioners in favour of a resolution can actually constitute the view of the commission?

Prof. Croucher : No, but nor do the quarterly papers of the commission expressly put up in headlights that section 44(7) is the activating provision. That is part of the governance framework within which we operate.

Senator SCARR: Okay. So, just to be clear on your evidence: in your evidence you referred to two long conversations over two weeks. Presumably that was at two meetings. Is that correct?

Prof. Croucher : There were two of what I describe as the fortnightly commissioner meetings. There were two meetings, two weeks apart. In the period of the two weeks apart, feedback was taken on board from the first meeting, other feedback was sought, and some commissioners provided feedback in writing or, if they were unable to attend the second meeting, provided their feedback as to their view, which could be taken into account at the conclusion of those two meetings.

Senator SCARR: From your perspective, each of those meetings constituted a meeting which would meet the requirements of section 44 of the governing legislation—correct?

Prof. Croucher : Yes, as in I called the meetings—

Senator SCARR: I'm just asking.

Prof. Croucher : Yes. I called the meetings. The agenda was clear, the papers were provided and an outcome was flagged as being the object.

Senator SCARR: Okay. Are there minutes taken of those meetings?

Prof. Croucher : They are noted. I take the notes, and they are included on a website that is available to the commissioners. They are not in the formal—I don't have an additional minute taker. I take the notes myself, and I record them and make them available to all commissioners.

Senator SCARR: Let me ask you this question. Is there any reason why? In my experience as a company secretary—and I think you know my experience—typically you have a meeting. These were quite significant meetings in terms of this referendum. My experience would typically be that the draft minutes of a meeting are prepared and then they're circulated to the participants of the meeting, and then those draft minutes are perhaps considered at the next meeting to provide an opportunity for all of the participants to provide any feedback with respect to whether or not the minutes reflected the details of the actual meeting. From what you're saying, that process is not typically followed with those weekly meetings.

Prof. Croucher : They're fortnightly. They are less formal, but they are all fully minuted, and all of the minutes—notes—are available to commissioners for comment, review and feedback. There is not a formal process. The entire object of them is to foster that cooperative working environment across a very diverse commissioner group. From time to time, there are matters that require more formality, but for the most part they work very effectively as a cooperative working through various issues. They are opportunities for working programs across that are quite different from the quarterly meetings, which are really focused on the financial accountability of the commission. And there are regularly items that we consider out of the cycle of those orderly meetings and that is done either by email circular or by conversation of the kind that I've just described.

Senator SCARR: I understand. Did you receive any feedback with respect to your record of those two meetings?

Prof. Croucher : No, I have not received feedback on those, but the notes and all of the supporting papers that were considered were referred to in those notes with links and provided to commissioners for consideration.

Senator SCARR: Did those minutes, or notes, refer to the fact that it was a majority decision of the commission and refer to the dissentient member of the commission?

Prof. Croucher : Yes, it reflected that view.

Senator SCARR: Okay.

CHAIR: Senator Scarr, I need to hand the call over in a couple of minutes. I'm just giving you warning.

Senator SCARR: Yes, that's fine. So the commission then formed the view. Those meetings, President, presumably took place before that statement was released on 30 March 2023—is that correct?

Prof. Croucher : I'm sorry. Could you just repeat the first part of your question, Senator.

Senator SCARR: Those two meetings took place before the release of the statement on 30 March 2023—is that correct?

Prof. Croucher : Yes. The second of the meetings was on 27 February.

Senator SCARR: On 27 February?

Prof. Croucher : Yes, 13 and 27 February.

Senator SCARR: Okay. So when was the statement that was considered by those two meetings actually released?

Prof. Croucher : It was released on our website. I would have to confirm that specific date.

Senator SCARR: Yes, if you could. I'm interested to know the timing at which that—

Prof. Croucher : Yes, absolutely.

Senator SCARR: President, you said in your introductory comments that each of the commissioners, rightly, is independent in discharging their statutory roles. Obviously, that's of key importance. Once the commission came to the view that it did on the Voice and the legislation which has been presented to parliament, which has been documented, were there any directions or was there any discussion about what individual commissioners should do or should not do in exercising the rights they have as individual commissioners?

Prof. Croucher : As I said, no commissioner was constrained from voicing their opinion.

Senator SCARR: Right, but constraint is one thing; to constrain someone is quite an onerous action to take. Were there any indications to commissioners with respect to how individual commissioners should engage—given that you had the situation where you'd had two meetings and that in this case there was a majority view of the commission, which is provided for under section 44; I note that—and what it would be appropriate for them to do or not do subsequent to the meetings?

Prof. Croucher : I should add one detail: it was agreed in the second meeting that the primary spokespeople for the issues that were expressed in the statement would be Commissioner Oscar, Commissioner Tan and myself. But it was not suggested in any way that people couldn't voice their opinions or, indeed, vote as they wished. The whole idea of diversity of view was included in the statement expressly as part of the development of the draft statement in those two commissioner meetings.

Senator SCARR: How did you identify who the primary spokespeople for the commission would be?

Prof. Croucher : It was based on the already established advocacy on issues that relate to the area. Commissioner Oscar's role as social justice commissioner and as one who has long been an advocate for improved self-determination and issues of representative work was already clearly established in the area. There's Commissioner Tan, similarly, in terms of his anti-racism work and the importance of recognition of First Nations people in the work of the Race Discrimination Commissioner. And there's myself, naturally, as the president of the commission.

Senator SCARR: Sure. I'm interested in knowing the date of that statement and when that statement was released. I'm happy to hand over the call at this stage, Chair, but could I get a copy of the particular statement that you've been referring to and the date of its release before I have my next round of questions?

CHAIR: Was it 30 March 2023?

Prof. Croucher : The public statement under my name, supporting the referendum bill, went out on 30 March 2023. The bill was introduced on that day. The position statement of the commission was put on our website at a date prior to that. I have some inquiries going on at the commission now about the exact date when we put that on our website.

Senator SCARR: Did you actually know what the content of the bill would be on that date—the day it was being introduced into the parliament?

Prof. Croucher : I'm not sure that I can answer that with great clarity—did I know the precise terms of the bill at the time that our position statement was going out? We were looking at our position, as a commission, reflecting on the international commitment. So it was a standalone thing in the context of the discussion of the bill going forward. It was not about the bill, because the bill wasn't introduced until 30 March.

Senator SCARR: That raises the natural question of how you could form a position without knowing what the actual text was going to be of the proposed amendment to the Constitution?

Prof. Croucher : The position was with respect to the Uluru statement, which was calling for a referendum for constitutional recognition. Our consideration as a commission was in terms of how that sat with the international jurisprudence. That was the position statement that we released.

CHAIR: Maybe it's worth going and checking the date of that statement for the benefit of the committee. I've got a copy—I don't think it has been printed; I think it has been extracted for me—of a statement on 30 March, and you refer to the introduction of the legislation. I think you actually did have—

Prof. Croucher : That was the second statement, and by then that referendum question was well known. The position statement that Senator Scarr was asking me about was the one determined by the commission in relation to the Uluru Statement from the Heart.

Senator SCARR: I must admit, I wasn't sure which statement we were talking about.

Prof. Croucher : I hope my answer's clarified that somewhat.

Senator SCARR: I understand that now. Is it possible for us to get a copy of the statement, even over the dinner break, so we're clear with respect to what was put up when?

Prof. Croucher : Certainly, and I've just had it in my ear that 15 March was the date it went on our website, but we can certainly provide you a copy of our statement—the one that went on our website, a position statement of the commission in relation to the Uluru Statement from the Heart.

Senator SCARR: Thank you.

CHAIR: Can I just ask a more general question about that position. Why do you think the support for the Voice isn't important from a human rights point of view?

Prof. Croucher : From a human rights point of view, the idea of an initiative that provides constitutional enshrinement of a mechanism for participation is one that is clearly resonant with the concluding observations in several treaty appearances. After all, the Human Rights Commission is the domestic mechanism for reflecting those commitments under those treaties. So where the concluding observations of several treaty bodies align directly with the ideas that are in the Uluru statement and, indeed in one instance, expressly refer to it, then, as the Human Rights Commission, affirming the embodiment of the international principles within the Uluru statement is a discharge of our obligation within that wider international mandate.

CHAIR: Thank you. That statement from 30 March, as we've established back and forth with my deputy chair, was in relation to the legislation being released.

Prof. Croucher : Correct.

CHAIR: You made a statement in support of that bill and the wording in the bill. On the same day, the Australian published an article by Commissioner Finlay in relation to her position on the Voice, which, as you've articulated, she's able to do. Did she let you know before that article was published that she was planning on publishing it?

Prof. Croucher : Yes, she did. As I was referring to, our obligation is to work cooperatively, and we do have a very respectful mode of working, even at points of disagreement, and there are other points where we might disagree. There are commission decisions that are required, say, for intervening in litigation, so we have an engagement on those issues. In this case, yes, Commissioner Finlay did raise it with me. We spoke on the phone. Commissioner Finlay is here, and I'm sure she can answer in relation to this for herself.

CHAIR: I think there'll be some questions.

Prof. Croucher : Commissioner Finlay shared a draft. I provided some feedback, so we had a number of engagements in relation to the issue. So, did she speak with me? Yes, and we did so very respectfully.

Senator STEELE-JOHN: I have questions for Commissioner Gauntlett. I'd like to ask you, first of all, Commissioner, whether you're aware of the public interest criterion No. 4007 within the Migration Act, which requires that a visa applicant must be free from disease and conditions which require health care or community services.

Dr Gauntlett : Yes, I am.

Senator STEELE-JOHN: Are you aware that disabled people and, in many cases, children failed to meet these criteria and have therefore failed this requirement in the Migration Act?

Dr Gauntlett : Yes, I am.

Senator STEELE-JOHN: Can you confirm that even though disabled people in Australia are protected under the Disability Discrimination Act 1992, the exemptions in the Migration Act mean that Australia can discriminate against migrants in Australia with a disability, even when a child has been born in Australia?

Dr Gauntlett : I need to be relatively precise with you here just to make sure the language is correct, but there is an exemption that exists under the Disability Discrimination Act for certain provisions of the Migration Act which means that the Disability Discrimination Act is inapplicable in those circumstances.

Senator STEELE-JOHN: Yes, and the effect of that exemption is that the Australian government can discriminate against migrants who have a disability, even when they may be children born in Australia.

Dr Gauntlett : The effect of that provision is that there is an exemption from the operation of the Disability Discrimination Act within certain decisions to be made under the Migration Act, and that then has the effect that the underlying discrimination is inapplicable, and therefore for that reason there can be decisions made which are not impacted upon by the operation of the Disability Discrimination Act.

Senator STEELE-JOHN: Do you see this discrimination as a breach of our obligation as a signatory under the UN Convention on the Rights of Persons with Disabilities?

Dr Gauntlett : There is a significant issue in terms of compliance with the Convention on the Rights of Persons with Disabilities, and in particular article 18 of the Convention on the Rights of Persons with Disabilities. This issue is raised in the periodic review for Australia of September 2019 as an issue where Australia needs to closely consider the issue. There is an interpretive declaration which the Australian government has in relation to article 18, on which we have made representations that it should be removed. We continue to make those representations that the interpretive declaration for article 18 is inconsistent with the Convention on the Rights of Persons with Disabilities, and that position is reflected in the concluding observations on the Committee on the Rights of Persons with Disabilities, which was released in September 2019.

Senator STEELE-JOHN: How many times has your office been contacted regarding cases relating to the Migration Act?

Dr Gauntlett : I would have to take that question relating to matters concerning the Migration Act on notice. One of the things to be relatively clear with you, though, is that we do not have a complaints function in my office. There is a separate complaints mechanism that exists within the commission, and so some of those pieces of feedback may have gone to the complaints function and not my office. But I am aware of a number of articles in the media concerning this issue over my time as commissioner.

Senator STEELE-JOHN: Absolutely, including articles where migrants who have given birth to disabled children have been deported because of the birth of those disabled children.

Dr Gauntlett : I am aware of a number of instances where decisions were perhaps going to be made and there was intervention from the minister to enable that individual to stay in the country. In terms of the precise outline of events that you have raised, those are not the types of articles that I was referring to. But I am concerned, given the underlying data that exists, that that may have taken place.

Senator STEELE-JOHN: Would it be your view that the Migration Act as it is currently written is discriminatory against disabled people?

Dr Gauntlett : I have significant concerns that there are underlying human rights issues with the operation of the Migration Act and there is a long-term issue relating to Australia looking at the operation of the interpretive declaration to article 18 and also its compliance with the Convention on the Rights of Persons with Disabilities. I should add we wrote a letter to the minister in relation to this issue, which I'm happy to table if required, and we had a productive conversation with the minister, Minister Giles, in relation to trying to reform aspects of the Migration Act. There was, I think, a respectful dialogue about trying to make the underlying Migration Act be more reflective of human rights considerations.

Senator STEELE-JOHN: Thank you. If you could table that letter, that would be fantastic. That concludes my formal line of questioning, and it remains only for me to thank you, Commissioner, for your service in this role. It's been a pleasure to work with you across this side of the table, and, given that it's your last estimates before you go off to your new position, I think I can speak on behalf of the whole committee in wishing you well in that new position and thanking you for your service to the Australian disability community.

Dr Gauntlett : Thank you very much, Senator. If I may, I would like to thank you for all the questions that you've asked of me in the committee. The Australian Human Rights Commission is an apolitical organisation, but we very much appreciate the diversity of the parliament. People from diverse backgrounds asking questions in relation to issues pertaining to people with disabilities is undeniably important, and I hope that you continue in your role asking polite questions to the next Disability Discrimination Commissioner to ensure that the rights and considerations of people with disability are considered now and in the future.

Senator STEELE-JOHN: Thank you.

Senator SCARR: What a rap!

Senator SHOEBRIDGE: Broadly polite!

Senator STEELE-JOHN: Yes, indeed!

Senator SHOEBRIDGE: We look forward to lots of public hearings in your next role, Dr Gauntlett.

CHAIR: Thank you very much. You're not done yet, unfortunately. We are coming back after dinner.

Proceedings suspended from 18:30 to 19:33

CHAIR: The committee will resume its hearings, and I welcome back the Australian Human Rights Commission. Just before we go back to questions, I just have some advice on the program this evening. We did have questions for the Royal Commission into the Robodebt Scheme, but we'll put all of those on notice and thank the commissioners and their staff for their time. I know they're busily preparing their final report and findings. They did take some time to prepare. I apologise for that, but, in the interests of time, we're going to put those questions on notice.

Senator SHOEBRIDGE: Thanks for your attendance today and for the work you do throughout the year. Could I ask you about the pressures that are on the commission after a decade of what I'll characterise as political attacks and budget cuts? What state did that leave the commission in in the middle of last year?

Prof. Croucher : It's an interesting question. The commission has a very wide mandate, and, in its history, there have been times when the commission has not been the flavour of the month, can I say. It has to be navigated, but, as an independent agency, our job is to be frank and fearless in holding the governments—and I say in plural—over the years to account in terms of their commitments under the international treaties. That's our job. At times, you do feel a bit bruised from it, but the commitment to the work is always there, and I guess that's what keeps us buoyant and committed to the work we do. With our eyes firmly on the horizon and our principles very clear, that's all we can do.

Senator SHOEBRIDGE: Perhaps I was being a little bit oblique in my questioning. When you look at the commission's budget, there's enormous pressure, particularly on the staff budget, and there has historically been enormous pressure on the staff budget. Does that place pressures on the capacity of the organisation to retain staff, and does it have an impact on staff morale?

Prof. Croucher : Yes. Our ability to do our work is very heavily dependent on the quality of staff that we have—on both the quality of our commissioners and the staff to support them—and sufficiency of resources to do that is always an issue. We've identified different models of resourcing. A model that would see us well funded to discharge the range of our mandates, with each commissioner having an appropriate team, is around 145 core staff. That's on the public record. We are resourced for 100 core staff.

CHAIR: Sorry, Commissioner. I think we've got an issue with our—

Prof. Croucher : We've got an issue with the microphones?

CHAIR: Yes. It's not you.

Prof. Croucher : No, I understand, because I speak clearly.

CHAIR: Yes, you do, and we're pretty good at being heard when we want to be picked up.

Prof. Croucher : But it's the picking up for Hansard.

CHAIR: There we are.

Prof. Croucher : Now we are.

CHAIR: Wonderful. Thank you.

Prof. Croucher : Now I can feel the resonance around me.

CHAIR: Thanks very much.

Senator SCARR: Can't we all!

Prof. Croucher : I need it at this time of the evening!

CHAIR: Sorry to interrupt you.

Senator SHOEBRIDGE: That's okay. If I go to the budget papers, and I look at the budget position on the estimated actual for this financial year and what is budgeted for next year—I'm looking at table 3.4 on page 178—the actual income received last financial year was some $41.6 million. It's going to go up to $42.7 million this year. The receipts from government are going to rise from $26 million to $31 million. Is it the $31 million that establishes 100 full-time staff, or is it the $31 million plus the sale of goods and rendering of services?

Prof. Croucher : If I may, I'll defer to our chief executive, Ms Smith.

Ms L Smith : Our hundred core staff are funded from our annual appropriation. That's the only way we can hire ongoing staff to build the institutional knowledge of the commission. The staff who are brought on through sale of goods and rendering of services through the external projects are non-ongoing staff brought on for a specific project.

Senator SHOEBRIDGE: Is the $31 million sufficient funding to have 100 full-time-equivalent staff? That's what I'm trying to understand.

Ms L Smith : That's more than the core staffing because it includes the October budget measures for Respect@Work and the National Anti-Racism Framework.

Senator SHOEBRIDGE: Sorry, could you repeat that? I was distracted.

Ms L Smith: That figure you've just quoted includes additional staff, some of whom are on a short-term basis and some of whom will be ongoing for the two October budget measures for Respect@Work and the National Anti-Racism Strategy.

Senator SHOEBRIDGE: So some of those will be short-term hires?

Ms L Smith: That's correct.

Senator SHOEBRIDGE: The $10 million for the sale of goods and rendering of services—is that for such work as when the Sex Discrimination Commissioner goes out and provides services to the parliament or to other external agencies?

Ms L Smith: The $10 million for next year's budget is external project revenue, the projects that I mentioned earlier in the session—for example, the Australian Defence Force partnership and so on. That's revenue generated by commissioners largely.

Prof. Croucher : If I may: the work is done by the commission, not by the individual commissioners. You referred to Commissioner Jenkins, but it was the commission that was doing the work. She led it for us, but it was the commission who was doing the work.

Senator SHOEBRIDGE: It's that problem we discussed last time—of the commission basically having to be rainmakers, and the tensions that puts in an independent commission. Some of that, I'll call it rainmaking, is the $10 million of income from a variety of different sources for this financial year.

Prof. Croucher : Ms Smith is giving you the financial answers. The question of independence raises a separate issue. I talked, in an answer to Senator Scarr earlier, about the issue of the challenge of preserving our independence to make decisions about our priorities. Where they happen to align that's a good thing, but the priorities have to be driven by us.

Ms L Smith : I would just add that, following the October budget and the new measures that were in place, we were also given additional financial capacity to deal with the complaint backlog we've had over the last several years—which is, again, short-term funding to remove that backlog. The October budget also allowed us to stay at the level of 100, rather than having to reduce our staffing table further—so, in effect, it stabilised our budget. We're working with the Attorney-General's Department and the government to look at sustainable financing for the commission into the future.

Senator SHOEBRIDGE: How much of the $31 million is actually short-term funding?

Ms L Smith : I'd have to take that on notice.

Senator SHOEBRIDGE: Was it partly reflected in the fall in the estimated funding next year down to $30 million, and then the more dramatic fall in 2025-26 down to $28 million? Is that the withdrawal of the short-term funding?

Ms L Smith : It's my understanding that that's a trajectory of those projects, yes.

Senator SHOEBRIDGE: That reflects $3 million or so coming out of the commission, which would be a good approximation of the short-term funding.

Ms L Smith : I think it reflects the life cycle of those new measures, those new projects, and how they've been planned over that period.

Senator SHOEBRIDGE: One of the very real concerns I have is this is a replication of the last 10 years of short-term project based staff, short-term funding projects and the lack of certainty. History is repeating, isn't it?

Prof. Croucher : It does create challenges; we've mentioned some of those in response to prior questions. One of the key issues is that the people who come on for those limited measures are part of our intellectual capital but they go, because when the measure has finished we lose those staff. For example, the additional staff through Respect@Work, while it was ongoing, and then particularly Set the standard, as the most recent of those inquiries, were supported by significant external funding. We've lost the expertise that was developed during that process because of the short-term nature of the funding. So it has an impact like that, and it has an impact in terms of our underlying independence to make choices about the work we do.

Senator SHOEBRIDGE: Perhaps I wasn't making myself clear enough; it also has a very real impact on how an organisation operates if you have all these differentials between the staff, with some on temporary contracts, some potentially on casual contracts—I don't know if that's an arrangement you have—and some on project based contracts. In the context of the commission, you also have a bunch of permanent employees who are no doubt APS employees and you have the statutory protection of commissioners. You've got yourself a mess, haven't you?

Prof. Croucher : I used the word 'challenge', which is the word I would prefer to use. It loops back to an answer to a question I gave earlier in terms of the ability to recruit. As a small agency with those variables, and also very little possibility of any movement upwards within the commission, it's another constraining factor.

Senator SHOEBRIDGE: It's not a constraining factor; it's a recipe for dysfunction. If you have such unhelpful diversity amongst a relatively small team—if a bunch are only there on temporary contracts, if a bunch are there for a specific project—it's a recipe for an unhappy team, isn't it?

Prof. Croucher : It takes a lot of work to ensure that morale is a key focus of the work we do. There is potential of the kind that you reflect, but I consider that the work we do within the commission tries to minimise that. It is, as you rightly say, a consequence of having the short-term project funding mixed in with the core underlying ongoing staff.

Senator SHOEBRIDGE: Let's be clear: you're going to go through another downsizing, another round of people thinking they have a job with the commission and losing their job, as $3 million of government funding is taken out over the next three years. That's going to see three years of staff without job security, wondering what on earth is going to happen to them, as another $3 million is taken out by this government—not the last government, but this government.

Prof. Croucher : It's the conclusion of the measures—the staff that are hired for those measures know that is the position they're in. We are still working on addressing what happens at the end. As I said before, we are working to ensure that our core funding for the staff we consider we need is moved upwards to support more in the core staffing component.

Senator SHOEBRIDGE: That very statement would cause me anxiety if I was an employee—'the staff we need'. I would imagine all the staff there are doing really important jobs, yet some of them are on temporary contracts and some of them are on short-term contracts. That's the very differential I was putting to you.

Prof. Croucher : Yes. It is a mix of staff that we have as a consequence of the short-term measures that we have in addition to core funding.

Senator SHOEBRIDGE: But it's not just the $3 million that's being taken off you by the government from this year's funding; it's another $9½ million—almost $10 million—that's being taken out of the commission as the project work concludes. The next three years are going to be quite brutal inside the commission; that's the truth of it, isn't it? You're going to have $13 million taken out of a $42 million budget.

Prof. Croucher : As the measures conclude we won't have that funding anymore, and we'll be back to square one in terms of the identified need for a core staff that is higher than 100.

Senator SHOEBRIDGE: But I'm asking you about the next three years—this year, next year and the year after. For staff who are currently in there now, it's like The Hunger Games.

Prof. Croucher : The staff who are with us now have certainty about their position. The difficulties we were facing before were through a whole range of uncertainties we had to navigate and a downsizing in consequence. That was very difficult for us and challenging, and it was hard to manage morale during that period. But, now that we have certainty about the parameters, there is the consequence that you rightly identify: when those measures finish, we will be in a position where, unless we achieve that significant increase steadily to our core funding—plus the compounding impact of pay rises and all of the other impacts—there will be pressure on the maintenance of that core. I know Ms Smith would like to contribute to this conversation.

Ms L Smith : I just want to speak to the point in the budget papers around the sale of goods and services, the external project revenue, and why it drops off so significantly. Part of that reflects the fact that, for the project work, we have to keep going out to get new projects to keep the project revenue up. Some of these projects are more like partnerships over several years, and some of them are short-term projects. So we can't be certain of what that project income is going to look like going forward.

Senator SHOEBRIDGE: So I should pay no attention to the projected budget figures?

Ms L Smith : It's the best we can do at this point in time.

Senator SHOEBRIDGE: Well, if it's the best you can do, that's what I'm relying upon—

Ms L Smith : That is what we know at this point.

Senator SHOEBRIDGE: and there is a cliff coming. Are you saying, Professor, that certainty—in this case the certainty that $13 million is coming out of the commission, that a bunch of people are going to be made redundant and that contracts are going to be terminated—is providing for a happy ship?

Prof. Croucher : I'd like to disconnect a number of elements in your proposition, please, Senator. There are no redundancies in what we're talking about, because these are short-term funding measures that have staff attached to them, and so the staff are engaged within that framework of spending. We're not talking redundancies here; we're talking about contracts that are limited to that period of funding. But, as Ms Smith said, and as you've flagged in the way you put the proposition, unless we secure additional lines of income, which is where our priorities may resonate with parts of government that want to do work of the kind that we are very good at, then we will refresh each year, whether we've been able to secure additional funding. The key point in the conversation with you and the questions from Senator Scarr reveal, I think, an underlying tension in relation to our independence to choose the projects that we wish to do.

Senator SHOEBRIDGE: I accept—and we've discussed at previous estimates—the independence issue. Take that as proven, for my part. I'm asking you about the organisational pressures. I'm not entirely sure you understand the nature of the concerns that I'm putting forward, about the organisational pressures, the staff pressures, the concept of hunger games that I put to you. What does $28.1 million in 2025-26 mean in terms of the number of full-time equivalent staff, Ms Smith? Is that 100?

CHAIR: Senator Shoebridge, I need to hand the call over after this question.

Senator SHOEBRIDGE: Right. Is that 100?

Ms L Smith : I'm happy to take that on notice if I may.

Senator SHOEBRIDGE: You don't know what that actually means? You've got the budget. You've had the budget for longer than I have. You don't know what that means?

Ms L Smith : It's probably slightly more than 100, and it reflects some of the new positions that will be ongoing from those two budget measures from October. That's for new work, not for the core responsibilities we had before.

Senator SHOEBRIDGE: How many core funded full-time positions does that mean you're going to have?

Ms L Smith : I'll have to take that on notice.

CHAIR: Senator Scarr, you have the call.

Senator SCARR: President, I'd like to come back to the line of questioning I was pursuing before the dinner break. Did you have a chance to print out the statement that was on the website just so I know which statement we're referring to that was the subject of the two discussions?

Prof. Croucher : The one that went on our website?

Senator SCARR: Yes. I've got it on my phone, I think.

Prof. Croucher : We will make sure that we provide it to you.

Senator SCARR: I just want to make sure I'm talking about the same thing.

Prof. Croucher : I don't have the facility to print things out in that way, but we can certainly provide it to you.

Senator SCARR: You could email it to the secretariat, as Sophie is helpfully pointing out. Before you do that, do we have the date that that went up on the website?

Prof. Croucher : I'm advised it was on 15 March.

Senator SCARR: So the statement that went up on 15 March, which I'll call the first statement, was the general support for the Uluru statement from the Heart. Is that correct?

Prof. Croucher : Yes. And the idea, if I may, was that that statement would then link to all of the preceding advocacy around the issue concerning the Uluru statement that connected with, for instance, the work that our Commissioner Oscar had done.

Senator SCARR: I understand that. Then there's the subsequent statement put out on 30 March under your name, immediately following the introduction of the bill into parliament. Is that correct?

Prof. Croucher : Correct.

Senator SCARR: What was the thinking behind putting out the first statement on 15 March? What was the catalyst for that statement being made at that point in time, given the Uluru Statement from the Heart, as we know, was released in 2017? What was the thought that that was the time that a statement needed to be made in that regard?

Prof. Croucher : It was a culmination of our reflection on the commission's position in its international mandate, and it was in the light of the upcoming referendum to make clear the position of the commission so that we could be confident that our work was clearly grounded within the international space so that we would have a statement that would underpin the educational work that we anticipated that we could contribute in the discussion coming up now.

Senator SCARR: Then the statement, which was released on 30 March in relation to the bill itself, wasn't the subject of any discussion at the—weekly?—meetings?

Prof. Croucher : Fortnightly. No. It was a press release welcoming the referendum bill.

Senator SCARR: From your perspective, the earlier discussions you'd had between yourself and the commissioners with respect to the 15 March 2023 statement were the key meetings in terms of determining the position of the commission and, therefore, the statement released on 30 March just necessarily flowed from what had been decided by the majority of the commissioners at the earlier meeting. Is that a fair representation?

Prof. Croucher : Yes. That's a fair thing, that the discussion among the commissioner group was to affirm the international underpinnings in the Uluru statement and, going forward, in the context of the referendum to be advanced so that that could be the foundation for the work we would do as a commission, beyond the commissioner group but as an institution, in terms of developing community support.

Senator SCARR: In considering that in terms of the timing of the introduction of the bill, did that mean that the commission was relatively agnostic as to the details of the amendment to the Constitution itself? I'll give you an example. Clearly there's a lot of debate as to whether or not a constitutionally enshrined voice should be limited to simply making representations to parliament as opposed to parliament and executive government. Was the commission agnostic as to whether or not it was parliament and the executive government? Was that considered?

Prof. Croucher : That was not the subject of our discussion. Our support for the Uluru statement, particularly through our social justice commissioners, goes back to about 2019—and was on our website, I'm being advised. But the point of it was just affirming the connection of the Uluru statement with the international concluding observations and alignment with the broader international mandate within which we sit so that we had a clear understanding and confirmation as a group of that connection so that we could proceed, agnostically, as you say, in the discussions that were to follow about the significance of the referendum in terms of its reflection of the Uluru statement and its reflection of the commitments under those international treaties and the concluding observations that have flowed there from.

Senator SCARR: Alright. So, from the commission's perspective, whether the constitutionally enshrined voice had the constitutionally enshrined right to make representations to executive government or to parliament or both was something which hasn't been considered by the commission, nor did you consider it something which the commission needed to consider? Is that a fair comment?

Prof. Croucher : The focus was on the constitutional enshrinement and the Uluru statement, which embodied constitutional enshrinement and its reflection of the connections with those concluding observations. It was a clarification of our role in the context of a significant upcoming moment.

Senator SCARR: I understand. The statement that was released on the website—this has been the subject of some commentary, which I will get to—didn't refer to the fact that, as you have given in your evidence, it was the majority position of the commission as opposed to the unanimous position of the commissioners and the president. I note, as we have discussed, under section 44 there is statutory provision for there simply to be majority endorsement of a position. That's clear on the face of the statute. Was there any consideration given at the time that you released the statement on 15 March 2023 as to whether it would be appropriate in that statement to say that this is a majority position of the commission as opposed to a unanimous position of the commission.

Prof. Croucher : When we embark on a whole range of other actions, such as an intervention in court, we wouldn't say the decision to intervene was a majority decision of the commission but a consideration of the commission. Whether it's a majority or unanimous or casting vote or otherwise is not something that is taken into the action that follows from that decision. I mean, part of the nuance in the revision of the text of our statement was to ensure that it acknowledged the diversity of views. That statement—have you got a hard copy of it now, Senator?

Senator SCARR: No, I don't think I do.

Prof. Croucher : May give this to you?

Senator SCARR: Please.

Prof. Croucher : Oh, good, we've got a runner. Just what I need.

Senator SCARR: A runner? Run!

Senator RICE: It's too late at night to be running!

Senator SCARR: Good on you. Thank you.

Prof. Croucher : Senator, note in the third paragraph:

The Commission acknowledges that there will be a diversity of views among the Australian community about the Voice proposal. Different views should be respected in this debate.

When I conveyed the conclusion of this statement back to staff who were keenly interested in learning about the development of our work, I added, 'so in the outside world as in the commission'—or words to that effect—to acknowledge that there may have been different views within our inside community.

Senator SCARR: I think that's a very important message, so I commend the commission under your leadership for including that paragraph. The question I do have, though—it's one thing to acknowledge that there's a diversity of views among the Australian community. It seems to me—I'm simply going to put this to you; I'm interested in your view—with respect to something of this significance, in terms of the first referendum we've had in 20 or so years, that there is a legitimate view that it would be appropriate to perhaps have it also acknowledged in this statement that there is a diversity of opinion within the commission itself. So the question I have is: in terms of settling this, did anyone put forward that view—that there should be recognition in this statement that there was a diversity of opinion within the commission itself?

Prof. Croucher : The text of the statement is as you have it, which reflected the diversity comment. Given that we have had a long history of advocating for measures such as this, it does not reflect that the view among the commission group was not unanimous. It does not reflect that I know you've suggested that it could have included that. It could have, but, quite frankly, I don't think that that would be true. It would undermine the significance of the statement. It certainly would be at odds with the long history of advocacy both on the Uluru statement and all of the other issues surrounding it, like constitutional enshrinement; it would be out of kilter with that. It is not in that statement. I know that it could have been. It is not there. And I sought to ensure that, when I reported back to staff about the statement, that diversity statement also respected the fact that people within the staff of the commission and the commissioner group may have different views. But, in terms of the statement to the outside world, the diversity point was captured in that way, and that's consistent with the long history of advocacy on these issues.

Senator SCARR: In terms of receiving input from your fellow commissioners, in terms of the content of this statement, did any of the commissioners put forward the proposition that it should more explicitly refer to the fact that there was a diversity of opinion amongst the commissioners themselves?

Prof. Croucher : After the statement went out.

Senator SCARR: After the statement went out, that view was expressed? And how was that view expressed?

Prof. Croucher : Directly to me.

Senator SCARR: In writing or verbally?

Prof. Croucher : In my conversations with Commissioner Finlay, which she can provide evidence about as well.

Senator SCARR: Commissioner Finlay, I might ask you some questions on this if I can. You have been following the testimony in relation to how we got to this position and the process. Did you receive a draft of this statement before it actually went out? Did you have an opportunity to give your view with respect to the drafting of the statement?

Ms Finlay: Yes, as the president indicated, there were a number of meetings, and the draft statement was the subject of discussion amongst the commissioner group.

Senator SCARR: You have been listening to the testimony from the president.

Ms Finlay: Yes.

Senator SCARR: Is there anything to be added to the process that occurred leading up to the issue of this statement that you think needs to be added to complete the record, in terms of how we got to the position where this statement was released? Then I'm going to take it on from there.

Ms Finlay: Only that there was discussion about whether in fact the statement should be expressly stated to be unanimous or a majority statement, and there was some discussion about that. In terms of the time line, the only thing I would add is that the statement I believe you have was from 15 March when it was posted on the website. The final version of that statement and the publication came to my attention on 23 March, when it was published on the social media of the commission, and the significance of that date is that it was the date that the announcement was made about the draft wording of the referendum, and the social media from the commission that attached the statement reflected that.

Senator SCARR: It went up on the website on 15 March, but you weren't aware of that—is that correct?

Ms Finlay: I first became aware when it was posted on social media on 23 March.

Senator SCARR: Did you see a draft of the statement which was in those terms before—

Ms Finlay: Yes. That's the statement that was the subject of discussion at commissioner meetings, as indicated by the president.

Senator SCARR: Why did you have the view—and I know reasonable minds can differ with respect to this matter—that it should have explicitly said that this was a majority position of the commission, noting that under section 44 there was a power for the majority of the commissioners to determine a position? Why did you consider that important?

Ms Finlay: Certainly I do recognise, as the president has indicated, the history of the commission's work in this respect and the work that individual commissioners have done in this area, and I respect their views and I respect the contribution that they've made ahead of the referendum. I'm very aware of the fact that the commission has reached an institutional position and the statement does truly reflect that. I held a different view, which I reflected in the opinion piece, and my concern was simply that my view wasn't thought to be the commission's agreed view, in terms of that statement, because my position differed. On an issue as significant as this, I do think it's important that different perspectives can be explored, and there is an important question the Australian people are being asked to consider come the referendum, so, while the position of the commission as an institution is important, I also thought, as an individual commissioner, I didn't want my position to be misrepresented.

Senator SCARR: So you knew this statement had been settled?

Ms Finlay: Yes.

Senator SCARR: You had the opportunity to provide input as to why, in your view, it would have been preferable to say that it was the majority view. It was the institutional view of the Human Rights Commission, and that was the process amidst that, but you thought it was preferable to say it wasn't the unanimous view of the Human Rights Commission. But, when the statement went out, it was in the form that you had previously had an opportunity to provide comment on—is that correct?

Ms Finlay: Yes.

Senator SCARR: I want to come back to the point you made about when you first became aware of it. From your perspective, what's the relevance of that timing? I understand 23 March is when the bill was introduced. That's the point you're making, when it immediately went out.

Ms Finlay: Yes.

Senator SCARR: Is that the only point you're making with respect to time.

Ms Finlay: Yes, there was a connection to the development of the legislative process, if I can put it that way, in terms of the wording being announced.

Senator SCARR: You've listened to the President's testimony and her view in good faith that the position of the commission was to consider the international human rights matrix of all the conventions and all the precedence et cetera and that informed the Human Rights Commission view, and therefore it wasn't—and I don't want to put words in your mouth, President, so please correct me if I stray from what your position is. From the majority of the commission's perspective, it wasn't necessary to delve into issues such as if there should be a constitutionally enshrined voice with the power to make representations to parliament alone or to parliament and executive government. Did you express a view, at any stage in the process, that the commission should be interested in the detail of the bill?

Ms Finlay: My views in relation to the issue were set out in my opinion piece that I published on 30 March, and that does lay out some of those concerns I had in relation to the detail, but I certainly do understand and have great respect for the position that's been put forward by the commission and the explanation around the international human rights framework and how that sits in terms of the broader issues at stake.

Senator SCARR: Commissioner, I must say I was impressed by—and I'm impressed with the President as well—the sense of collegiality when you provided a draft of your article to the President to provide the President with an opportunity to provide input. Can you explain the process leading up to the preparation of your article and the engagement you had with the President in that respect? Why did you choose, in the first place, to draft an opinion piece, as you're entitled to do, as Human Rights Commissioner, and how did you come to the view it was appropriate for you to share a draft of that article with the President and provide the President with a reasonable opportunity to provide comment prior to your publication?

Ms Finlay: In brief, once the statement was released, I thought it was appropriate for me to write the opinion piece given that I wanted to be clear that I wasn't in agreement with that particular statement. That was a view that I expressed during our discussions around the development of the commission's statement—that I would feel the need to make sure that my position wasn't misrepresented. Having said that, I would note that, since I commenced in my term as the commissioner, I haven't made public statements in relation to this issue, and I didn't choose to make a statement until after the commission's statement had been published.

There was a week between the statement being published and my opinion piece being published. During that week, I spoke to a number of senior office bearers within the commission, including the President, and, as we would normally do with opinion pieces or positions that commissioners are putting forward, there was a process of discussion around that. Drafts were provided. I appreciated greatly the respect and collegiality that was shown during that process on what is a significant issue but an issue that the commission has engaged in in depth and commissioners have engaged in in depth over a number of years, so it is a challenging issue for the commission in that respect, given that I had a differing view. Once the feedback had been received and the opinion piece was going to be published, as we would normally do, it was circulated amongst the commissioner group to provide the opportunity for any feedback or discussions. I also circulated it internally to my team to make sure that they were aware, given that I knew it would be a sensitive issue and one that would likely be the subject of considerable commentary.

Senator SCARR: So that circulation you're referring to was after publication?

Ms Finlay: No, it was prior to publication.

Senator SCARR: It was prior to publication as well?

Ms Finlay: Yes.

Senator SCARR: Okay.

Prof. Croucher : We have an established procedure for doing so. Commissioner Finlay respected that and followed that. Indeed, we have weekly discussions about all sorts of matters.

Senator SCARR: Commissioner Finlay, I'm sensitive to the various issues that may arise through this discussion, but I do want to give you an opportunity to put on the record your view with respect to how that process worked internally. You seem to be quite comfortable that you had the opportunity—as was your right; to have the opportunity—to put your thoughts in the opinion piece and to get that published and that your engagement with your fellow commissioners and within the Human Rights Commission was respectful and collegiate. Is that correct?

Ms Finlay: Correct. I would certainly agree with the evidence that the president gave. No commissioner was told that they couldn't have a different view or was in any way directed in terms of what they could or couldn't say, recognising of course that we always try to work through these issues showing respect and collegiality to each other.

Senator SCARR: If I can, I will keep you at the table perhaps. Is Commissioner Tan here?

CHAIR: I do have to share the call as well, Senator Scarr.

Senator SCARR: Okay. Commissioner Tan, do you put pen to paper as well?

Prof. Croucher : Can Mr Tan and Ms Finlay swap? We're happy to stay on this side of the table.

Senator SCARR: Okay, if you like.

Ms Finlay: I will make way for Commissioner Tan.

Senator PATERSON: What's wrong with the other side of the table?

Senator SCARR: You can swap.

Senator PATERSON: Seriously! What's wrong with that side of the table?

Prof. Croucher : We're a team, Senator! This is our team's side!

Mr Tan : I feel like a runner.

Senator SCARR: All the witnesses do this; they pick a side!

CHAIR: Can we just hurry up? Thanks. It's late, and we've got questions.

Mr Tan : I'll sit here.

CHAIR: Thank you, Mr Tan.

Senator SCARR: Commissioner Tan, you've heard Commissioner Finlay's commentary and the president's commentary with respect to the process leading up to the publication of Commissioner Finlay's article. I was interested in the process you went through in the lead-up to the publication of your article in the Guardian on the same subject.

Mr Tan : The process would have been identical. We always, in a very collegiate manner, ensure that copies, particularly op-eds such as these on important issues, are in fact conveyed to commissioners so that they know that they are going out. It does invite the opportunity for commissioners to add commentary or have a view about it. The process would be quite similar in the case with Commissioner Finlay.

Senator SCARR: When did you decide that you would write an article?

Mr Tan : It would have been approximately a week before it was published. There would have been a discussion with the communications team about what might be appropriate, arising from the events that had been occurring in terms of ongoing debates in the community. It was about trying to perhaps provide some explanation and to clarify if there was any confusion about issues that pertain to my particular role.

Senator SCARR: As part of those discussions with your communications team—is it the human rights communications team you're talking about?

Mr Tan : Yes, within the Human Rights Commission.

Senator SCARR: Was there any discussion with respect to Commissioner Finlay's article, which had been released?

Mr Tan : Not that I'm aware of. It certainly didn't cast an issue in my mind, that it would be in response to or in addition to the op-ed that was put forward by Commissioner Finlay. It was to be purely on the issues of the day—what was important in my portfolio and my responsibility to address some issues.

Senator SCARR: I understand. Again, it was a collegiate process, a respectful process which followed the usual procedures of the commission; is that correct, from your perspective?

Mr Tan : Yes.

Senator RICE: I want to go to the issue of discrimination and vilification against LGBTIQA+ people. Since the middle of March, we've had an antitrans rally on the steps of the Victorian parliament attended by Neo-Nazis; a violent riot by so-called Christian Lives Matter members against LGBTIQA+ protesters in Sydney; vile homophobic tweets by New South Wales One Nation leader Mark Latham against member for Sydney Alex Greenwich, who is gay; multiple threats of violence against inclusive drag story time events; and news today in Tasmania that the memorial to transgender Tasmanian Marjorie Harwood, who died after an antitrans attack, has been desecrated with antitrans hate. Veteran Tasmanian transgender advocate Martine Delaney said:

It was part of a continuing campaign to demonise and incite hatred against trans and gender diverse people … We need our political, civic and religious leaders to speak out and condemn anti-transgender hate and discrimination.

What I want to know is: what has the Human Rights Commission been saying about all of this antitransgender and anti-LGBTIQA+ discrimination and vilification? Have you made any representations about it to the Attorney-General's Department?

Prof. Croucher : In relation to the broader issue, I'm reflecting on our regrouping institutionally in terms of ensuring that we have sufficient staff support to give the dedicated focus on, particularly, what I call in shorthand the SOGII portfolio, the sexual orientation-gender identity portfolio. The key element where we've been able to do some adjustment—we've had a lot of focus on budget, and one of the positions that we lost with the financial situation we were managing a couple of years ago was our dedicated advisor on LGBTIQ+ issues. But, because of the regrouping of our budget now, with the stability element of which I spoke in response to Senator Scarr's question, we've prioritised restoring that advisor capacity because of the pressing nature of the various issues to which you yourself have referred.

The various issues are indeed of concern. Since the completion of the intersex report—the report on children born with variations in sex characteristics, which I know you're aware of—our capacity within the organisation has been very stretched. We're addressing that institutionally by making a decision that we need to prioritise. So we are restoring that advisory role so that we will have some capacity to take some institutional responses in a more focused way, not scrambling around through lack of capacity, when issues arise of the kind that you've spoken about. So it has been a gap in our ability to respond. We are working on that, as I've advised, in terms of restoring that advisor role. I hope with the restoration of that role we will have some capacity to be more than just a reactive responder and to take some leadership, as we did on that report on children with variations in sex characteristics.

Senator RICE: Thank you for that, Professor Croucher. I take it, in terms of answering my question, that you haven't made representations to the Attorney-General's Department about these issues because of your lack of capacity.

Prof. Croucher : I think that is correct, that we've not made specific representations about such issues. Why I'm reflective is that they arise across a number of portfolios. I note, for instance, the work that June Oscar led, Commissioner Oscar, at the Wiyi Yani U Thangani summit, which was only a couple of weeks ago in Canberra. It was during budget week, and it was the most extraordinary collection of over 900 Indigenous women and girls. Transgender issues were a key element, a key theme, in Commissioner Oscar's work. Sistergirls were a group that was recognised throughout that. While I've been speaking of the institutional capacity and addressing that in the way I described, we haven't been absent across the range of issues, particularly pertaining to transgender. Commissioner Oscar might like to give some evidence in relation to the sistergirls' inclusion in very much the conversations that she was leading in the summit.

Senator RICE: I would value that, that but I've got limited time. You've said that it's been a focus through the work that Commissioner Oscar has done. One of the things that there have been a lot of calls for, and I'm a bit disappointed about, given that you haven't been advocating to the Attorney-General's Department, is the need to introduce prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics under Commonwealth law. Have you done anything on that in recent times, in the light of these real attacks on trans and gender diversity?

Prof. Croucher : There's a key moment that we have. We've seen an opportunity for the commission, given the nature of our mandate and our responsibility for those 2013 amendments, to take on an amicus function in relation to a key transgender case Tickle v Giggle, which is coming up. It was a matter that arose from a complaint, but which is now concluded. Because it's now into the litigation arena, I can refer to it. It's an important case because it has the possibility of raising some key points of law where there's not jurisprudence on it. One of the last actions of Commissioner Jenkins was to approve the exercise of our amicus function, which each of our special purpose commissioners has, in relation to that matter. Our role as an amicus is a very constrained one. We are there to assist the court; we are not there as a party. We've been involved in all of the key issues concerning children in their development in the Family Court, and with gender dysphoria and a range of other things involving children, so we've had to make choices about where our advocacy and our work can actually have big impact. The work that we are doing in terms of an amicus intervention we see as where perhaps we can use our standing and our work with the potential of lasting impact in an area of key points of definitional tension and lack of clarity in the act. We have made choices, but it is resource driven.

Senator RICE: One of the quite low-resource things that have been pointed out to me that the commission hasn't done is that as of 15 May there were no news stories or media releases about any of the above threats to LGBTIQA+ people on the AHRC website, for example. Basically, LGBTIQA+ people have not seen the support they would have been hoping for and expecting from the commission.

Prof. Croucher : The focus has been in particular areas. We do raise the issue in our submission in relation to religious discrimination with the Australian Law Reform Commission. Commissioner Tan has been advocating in terms of the Nazi symbols issue. But there's scope for more work in the area—absolutely—hence the prioritising within the commission for the need to appoint an adviser again, so we have an ability to take some leadership within. And, when the new Sex Discrimination Commissioner comes on board, one serious conversations is about the range of work that she will be doing. The absence or the lower profile in these areas that you refer to is an area that obviously will be a subject of discussion with that commissioner.

Senator RICE: So you do see then that that absence in the lower profile is something that you need to rectify?

Prof. Croucher : We need to make sure that we direct our resources where we can have the most impact.

Senator RICE: That's not the question.

Prof. Croucher : If we have not been as prominent as we could have been in this area, it's explained in the way that I've described it. I would look forward to increasing our engagement with such issues, which are important for a particularly vulnerable cohort.

Senator RICE: What has been put to me is that the lack of engagement demonstrates the need for a standalone LGBTQIA+ commissioner, and I would like your response to that.

Prof. Croucher : It's just been drawn to my attention that we also put out on a statement on IDAHOBIT Day on our media, but it's a modest thing—

Senator RICE: You do that, but, when you don't respond to these really vile attacks that have been made on this community, people just see that as being pretty hollow.

Prof. Croucher : Where we can improve our presentation—I always welcome suggestions of where we can direct our work better. As to the question of adding a commissioner to the commission, that's a matter for government. In the absence of such a commissioner, it is incumbent on the commission to have a profile of work that reflects all of the vulnerable communities that are embraced by our legislation, and we have some more work to do in that area.

Senator RICE: With your new resources—and in light of proposed changes to religious discrimination laws and the potential impact of those on gender-diverse communities—what do you see the commission doing to engage in advocacy to support those communities?

Prof. Croucher : We don't have new resources. I think that's inappropriate to say. We had additional resources for some specific functions in terms of Respect@Work, the National Anti-Racism Framework and also the backlog funding.

Senator RICE: But you're going to have an advisory position on LGBTQIA+ people.

Prof. Croucher : We are restoring that.

Senator RICE: So I presume that's—

Prof. Croucher : That adviser role—forgive me; I feel I'm interrupting you—was not part of the 100 core staffing level for which we are now essentially funded. Given that it is a priority area in the community and an area of concern—exactly as you have said—we have made the decision within the commission to give it priority, but that will have an impact, because there are not more resources; it's a choice that we are making within the existing resources. Similarly, in relation to an immigration adviser, that's a key area of our work, and we also lost that dedicated function. But we have made a decision as a matter of priority because it is a priority area for the communities that we engage in to have an adviser there too.

Senator RICE: Given that advisory position and all that you've been doing, specifically in light of the potential religious discrimination laws, do you think that the commission will be empowered and able to undertake advocacy to protect the rights of LGBTQIA+ people?

Prof. Croucher : We hope we can increase our advocacy across all of our domains.

Senator RICE: Okay. I have time to move on to a second domain, which is the Children's Commissioner. What's the current annual budget for the National Children's Commissioner and its office?

Prof. Croucher : Perhaps this would be appropriate for our chief executive to answer.

Ms L Smith : The commission's core funding through the appropriation is a commission-wide appropriation, so we will go through an internal process of work-planning to determine how to distribute those funds. But, broadly speaking, in the current financial year each commissioner, including the Children's Commissioner, had a commissioner budget of $20,000 and roughly the same amount for policy projects.

Senator RICE: So other than that there's—

Ms L Smith : Other than the staffing, obviously, that supports each commissioner—which is one director, one policy officer and one EA.

Senator RICE: The National Children's Commissioner was established in 2012-13 through a budget of $3½ million dollars over four years. When that was established there were recommendations from both the Senate and the House committees that inquired into that legislation that the commissioner's funding be revisited and reviewed. So, Minister, 10 years later, will the government commit to reviewing the funding of the commissioner—more than $20,000 of dedicated funding—so that it can probably perform its functions?

Senator Watt: Well, Senator Rice, I think before you joined us tonight there were some other questions from one of your colleagues about funding for the Human Rights Commission in general, and significant additional funding was provided to the Human Rights Commission in this year's budget. But obviously this is something we keep under ongoing review.

Senator RICE: But specifically the children's commissioner—all the other functions of the commission are focused on adults. This is the one that is specifically on children. Is there a commitment? Why hasn't the National Children's Commissioner seen the funding increase? And will you commit to looking at it?

Senator Watt: It won't surprise you to hear that I'm not going to give a commitment of that kind here tonight, but I can tell you that we keep the commission's resources as a whole under review, and we'll keep doing that.

Senator RICE: Okay. What steps have been taken to raise the need for progress on Australia's obligations under the Convention on the Rights of the Child and its reservation to article 37?

Prof. Croucher : I can answer the first part of the question. In terms of the reservation to article 37, I would have to refresh exactly what the nature of that reservation is. We have a number of reservations and interpretive declarations across the seven treaties. But in terms of the Convention on the Rights of the Child, one of the key planks of the model human rights act that the commission released on 9 March was to give greater prominence to the Convention on the Rights of the Child, particularly the obligation to enable children to participate in decision-making. The human rights act model brings into prominence that obligation of providing participation for children, for people with disability and for our First Nations people.

Senator RICE: What advocacy to government have you taken in terms of that, then?

Prof. Croucher : Of the human rights act model?

Senator RICE: Well, making progress on implementing Australia's obligations.

Prof. Croucher : Well, it is a key plank of our model that we're advancing at the moment, and our model human rights act has been placed front and centre of the Parliamentary Joint Committee on Human Rights inquiry in terms of a human rights framework for Australia. It's been brought to my attention that we have made a point that the reservation is unnecessary and have recommended to the Committee on the Rights of the Child that it be removed. I would like to clarify—I'm just reading off a quick text message—that I would think it was probably part of our submissions when Australia appeared before the Committee on the Rights of the Child. But given this comment that's come through, I'd like to confirm that, if I could—

Senator RICE: If you could take it on notice—

Prof. Croucher : on notice. It would be the kind of matter that we would raise directly when we appeared before the committee that was considering the Convention on the Rights of the Child, which is several years ago now.

Senator RICE: Right. So, perhaps you could take on notice what you've done with regard to that—

Prof. Croucher : Yes.

Senator RICE: particularly with the new government.

Prof. Croucher : Also, perhaps I could add that in our recent submission to the Parliamentary Joint Committee on Human Rights—we've put in a preliminary submission to that inquiry—we argue for parliamentary committee review of all reservations, as they are not sufficiently reviewed by government. That's at a higher level, but it does embrace that particular reservation you've referred to.

Senator RICE: My final question: you are probably aware that the United Nations Permanent Forum on Indigenous Issues recently made a number of recommendations, including regarding the abolition of children's prisons. What are you doing in regard to this?

Prof. Croucher : On this point, I will most definitely hand the question to the National Children's Commissioner.

Ms Hollonds : I'm not aware that there's been anything specifically done about the abolition of children's prisons, but I can confirm that my team and I have done a lot of work on the reform of the youth justice systems in this country and have just put out a call for submissions. I'm preparing a report to the Australian parliament on that issue. Of course, there is that position of abolition of prisons, but there's also a whole lot of other positions that one could take in terms of ensuring that children are deprived of their liberty as a last resort only and that, if they are, then the conditions under which they're looked after are consistent with our human rights obligations, and none of that is happening right now. That's not happening. That's why I'm preparing this report to parliament.

Senator RICE: On jailing children, yes. Will you specifically respond to the UN recommendations on the abolition of children's prisons?

Ms Hollonds : I would think that, as part of this process, this report that we're preparing, it would be something that we'll be considering. Certainly, it is something that's of serious concern.

Senator RICE: Thank you.

CHAIR: Senator Scarr, I'm going to hand the call back to you. Hopefully, we can move on to our other agencies very soon.

Senator SCARR: I hope so.

CHAIR: I have a couple of questions, but I'll let you take the call first.

Senator SCARR: Okay. Thank you. Commissioner Finlay, I think we've moved forward in terms of chronology, if I can put it that way, up to the publication of your opinion piece in the Australian. I note Commissioner Tan has provided background with respect to the publication of his op-ed in the Guardian. After your opinion piece was published, what happened, from your perspective? Did you receive any feedback from within the commission itself?

Ms Finlay: No formal feedback, in the sense that—I'm not entirely sure what you're referring to, Senator, to be honest.

Senator SCARR: We talked about the fact that you circulated a draft of the article, and that process was engaged in in a collegiate fashion. After the publication of the article, did you perceive any hostility or any discomfort or dissatisfaction with respect to the step you had undertaken, or did you perceive a cultural environment that was generally respectful and collegiate?

Ms Finlay: Perhaps I can put it this way. There is quite clearly a commission institutional position that is different to mine. In any environment where you're dealing with issues of serious consequence and where people have different opinions, obviously that can lead to discussion and conversation. But, certainly, within the commission I found it to be engaged in in a respectful and collegiate way.

Senator SCARR: Okay. That's exactly the question I was asking, so thank you for that answer. Did you seek to have your op-ed published on the commission website?

Ms Finlay: I don't recall specifically asking for that, no.

Senator SCARR: Are you aware that Commissioner Tan's article is published on the website?

Ms Finlay: No, I'm not aware of that.

Senator SCARR: President—and I'm just giving you the view of an outsider looking in—Commissioner Tan's article is accessible on the commission's website, but Commissioner Finlay's article is not accessible on the website. Were you aware of that?

Prof. Croucher : I can put it this way. Commissioner Tan's went out with a release. It had a media release, I understand, associated with it. In our recording of all of the publications of the commission, which are part of the record of those quarterly meetings to which I referred earlier, Commissioner Finlay's op-ed is included, as is, indeed, a piece that we wrote together that was published as a chapter in a book. So Commissioner Finlay's contribution is recorded as part of the publications across the commission. But Commissioner Tan's opinion piece, I think, went out with a media release because that was a decision that was made at the time. But opinion pieces aren't necessarily put on our website. It's perhaps considered as part of the strategies around that particular issue. So it's not an exception; it just wasn't put up in that way. But I think Commissioner Tan's was because of its association with a media release. Commissioner Finlay's piece and Commissioner Tan's piece were all recorded as part of the output of the commissioners and the commission.

Senator SCARR: Okay. Perhaps coming to the end of this line of questioning: I'm interested to know, President—I will ask you first—was there any interaction with the Attorney-General's office with respect to either of the two statements that had been released or with respect to either of the two opinion pieces?

Prof. Croucher : Is that a question for me? I wasn't sure if you were looking at me or Commissioner Finlay.

Senator SCARR: I'm going to ask Commissioner Finlay as well. Did anyone from the Attorney-General's office contact you and say, for example, 'Why do you have this commissioner putting out this op-ed and this commissioner putting out this op-ed?'

Prof. Croucher : No.

Senator SCARR: There was no engagement with the Attorney or the Attorney-General's office?

Prof. Croucher : Not of that kind. No.

Senator SCARR: Any other kind, with respect to the statements released by the commission or in relation to either of the op-eds?

Prof. Croucher : I gave the Attorney a heads-up as to Commissioner Finlay's opinion piece; I did that.

Senator SCARR: What does that mean, giving the Attorney—

Prof. Croucher : And I gave the secretary a heads-up. I sent a text message.

Senator SCARR: Did you receive a response?

Prof. Croucher : I believe I did, a courteous response—a thankyou, or something of that kind.

Senator SCARR: Alright.

Prof. Croucher : But that was the only correspondence, and, given the timing of things, I thought it was appropriate. We work on the basis of no surprises. I considered this a moment where I thought the Attorney, as the relevant minister, should not be surprised.

Senator SCARR: That's a very fair position. Commissioner Finlay, did you receive any communication from the Attorney or the Attorney-General's office?

Ms Finlay: No; I did not.

Senator SCARR: Commissioner Tan—I just want to complete the record—and then Commissioner Patterson, I've a question for you.

Mr Tan : Can you repeat the question?

Senator SCARR: I've just asked the President and Commissioner Finlay whether either of them received any communication or whether there was any communication with the Attorney-General or his office in relation to, in your case, your op-ed.

Mr Tan : None whatsoever, either before or after publication.

Senator SCARR: Okay. Thank you very much. I just want to quickly ask one question of Commissioner Patterson. Commissioner Patterson, I'm a huge fan of all the work you've been doing in relation to enduring powers of attorney in the context of elder abuse. I note that you've been advocating for quite some time in relation to there being a national register which provides a single source of truth, if I can put it that way, with respect to whether a particular enduring power of attorney is still in effect or whether it's been revoked, as well as a standardisation of laws across states with respect to enduring powers of attorney. I'd like to give you an opportunity to give us a final status report with respect to that area as to where we're up to in that regard and whether there's any work for us to continue, especially in the context of this being a legal and constitutional affairs committee.

Dr Patterson: Thank you, Senator Scarr. I don't know whether it's my mental status or the status of where this debate's at—they're two similar things!—but, I have to say, I am distressed, I'm very sad, and I'm furious that it's been 5½ years. In 2017 the Australian Law Reform Commission made a recommendation that powers of attorney be harmonised across the country and that a register be set up. We had a bit of a hiccup because people grabbed hold of the register and thought that was an answer to a maiden's prayer. But when they realised you could have a number of attorneys in one state and two attorneys in another state, it took about two years before we got off that track, and I kept saying the cart is before the horse.

We then started to work on looking at harmonising powers of attorney. I cannot believe that the attorneys—I have met all of them; it's like painting the Harbour Bridge, and Anna Bligh has met all of them—to our faces say that they agree that we should have a harmonised power of attorney. I don't understand how they're going to live with themselves. I am distressed. We've now got people in their mid- to late-80s who were 82 when this happened. In fact, anybody here in this room should have their power of attorney and enduring documents in place, irrespective of their age, once they turn 18. But specifically for older people, we are going to have the biggest transfer of wealth in the history of Australia, between $2½ trillion and $3 trillion over the next 20 years. The field is ripe for abuse. The banks are telling me that not hundreds but thousands, if not millions, of dollars are being transferred between the principals and attorneys in the same bank, let alone if it's going to another bank, every year. They see what's happening. Their hands are tied. I don't know what else to do—I thought maybe running naked through Sydney or something—to bring attention to it. I don't know what else to do. I'm distraught. I am furious and I feel as though I've been a failure, because we can't educate people. We've just done a very toe-in-the water piece of research with the CALD community. They know about wills. They know nothing about powers of attorney or enduring documents. That is disgraceful, and it is a disgrace that we can't actually have attorneys come to some agreement.

We have a document that's been developed in Queensland by John Chesterman, who is the public advocate, working with the Law Society of Queensland, to get a document that differs as little as possible from all across the country. The Law Society, the Law Council, the banks, ABA, COTA, National Seniors all support the move to a harmonised power of attorney, yet somehow the attorneys have got their heads in the sand. I think they need to be called to account. I'd love to see every senator in the parliament asking their state attorneys what they're doing about it. I know the new Attorney-General has a commitment to fixing our situation—OPCAT—and also fixing this issue. I support him whole heartedly. I hope he can drive those attorneys to do something about it—sadly, not within my term.

Senator SCARR: I want to congratulate you on your advocacy in that respect. I wanted to give you this final opportunity to underline this and you put the case extremely eloquently. I'm sure all my fellow committee members have heard you loud and clear. We have a considered minister at the table. I'm sure he's heard you loud and clear as well. Thank you very much for that. I certainly, as one member of this committee, will look at taking that forward.

Dr Patterson: Maybe we could have a Senate inquiry into why it's not moved ahead.

CHAIR: Senator Polley might have more questions for you, Dr Patterson. I have some questions for Commissioner Finlay in relation to the same matter as Senator Scarr was asking about.

Prof. Croucher : If I may interrupt for one moment, I do need to correct something. I checked some information regarding the matter, Senator Scarr, that you raised concerning Commissioner Tan's piece that was in the Guardian. There was no media release. It was not on our website. It was shared through Commissioner Tan's Linkedin. It was his Linkedin social media that linked to the Guardian article. It was not on our website, nor did we make a media release about it. I responded to your question and I need to correct that information.

Senator SCARR: If you could take it on notice and double-check that, because I'm sure I got it off the website? There might be technology that's confounding me.

Prof. Croucher : Certainly, but, if I have misled the committee in any way, I want to make sure it is corrected.

Senator SCARR: That is duly noted.

CHAIR: I want to go to the article in The Australian, Ms Finlay. A number of my questions have been put to you and the president already in regard to the consultation. I appreciate in the article that you refer to yourself as a constitutional law academic. Did you get any constitutional legal advice before writing the op-ed?

Ms Finlay: Did you mean specifically about the issues raised in the opinion piece?

CHAIR: Yes.

Ms Finlay: No.

CHAIR: Because it is a piece that deals with constitutional legal issues, as well as human rights legal issues. That was my question. In terms of the views that you've expressed in this article, since you printed it, we've had a number of people come out and support not only the Voice but the wording and the way that the provision is proposed, including the Law Council of Australia, the New South Wales Bar Association, former High Court chief justice Robert French, former High Court chief justice Kenneth Hayne, constitutional law expert Bret Walker, Professor Anne Toomey, Professor George Williams. A number of them hold the view that the legal issues that you have raised—they haven't directly referred to your article—are not made out or not supported. Since you've seen some of those views come through, some of them are quite compelling, particularly the evidence Professor Twomey and Bret Walker gave to the constitutional committee. Have you gone back and had a look, particularly the construct of the wording, and thought about this view that you published in The Australian?

Ms Finlay: Of course, as I would hope everybody who is thinking about this issue and looking at voting in the upcoming referendum will be thinking about the issue right up until the day of the referendum. Certainly, the people that you've mentioned are well-respected people. I have a lot of respect for their views and I have listened and considered those views, as well as the experts who appeared before the committee who presented different views. There are a range of legal opinions that have been presented in relation to this issue.

CHAIR: But I hear it a lot and I sat in front of them. There's a range of legal views, but you can have 50 people in a room and only 10 of them are the most eminent legal professionals in the country. A range of legal views doesn't take into account the majority of legal experts that gave evidence in that committee and who have written op-eds—everyone is writing about it and talking about it—don't agree with the positions you've put forward.

Ms Finlay: In relation to the human rights issues I raised in the opinion piece, I also recognise there are a range of human rights experts, again, who I respect greatly, who hold different views to me. What I would say is when it comes to these issues I think it is important for everybody to consistently reflect on their views and consider the fact that we might not all be correct all of the time, and our views should be adjusted accordingly.

But I'd say when it comes to significant issues of both constitutional law and human rights principles, it isn't always the majority or the largest number of people whose views should automatically be considered to be the correct views. There are a range of different opinions on this issue, and I've not come to the views that I hold quickly or without due reflection. I continue to reflect on those views. Having read through all of that evidence before the committee, my views do remain the same. The only thing that has changed is I am even more concerned than I was at the time I wrote this opinion piece about the prospects for respectful and constructive conversations on what is a very important issue in the lead up to the referendum and it stems from my experiences in watching the debate and the discussion over the last few weeks, where I do fear we're not engaging in the substance of the topic and are too quickly falling into personal attacks when it comes to what is a very important constitutional and human rights issue.

CHAIR: I think it is a different and a political point about bipartisanship, or the nature of it. I think the government would welcome bipartisanship on this matter but, unfortunately, that's not the case. Going back, your view hasn't changed broadly on the position of the Voice, not just the wording but the Voice itself?

Ms Finlay: Again, I would be very clear: my opinion piece relates to the particular model of the Voice.

CHAIR: Your article steps through some of the concerns you have.

Ms Finlay: That is correct.

CHAIR: But more broadly, you have a position around the Voice. We had a discussion previously about the majority view in the Human Rights Commission. Going back to that, you have a general position on the Voice you've held for quite some time, don't you?

Ms Finlay: Again, the majority view of the commission as reflected in that statement from 23 March was based around a model of the Voice that has been put forward, so my views in terms of the opinion piece that I've expressed are related to that specific model.

CHAIR: I'm not asking you about your article. I'm asking about your view on the proposition of the Voice to Parliament.

Ms Finlay: Again, the proposition for a voice to parliament rely does depend on specific details. I've said in the opinion piece, for example, that under the international human rights framework it's certainly true that, when you look at issues of self-determination and broad issues of discrimination and equality, there is a view that a voice to parliament in some sense may well be consistent with those principles. That doesn't mean that every single form of the Voice that's put forward will necessarily be consistent with those principles.

CHAIR: Ms Finlay, I think you know what I am asking you about. I'm not making an inference from the way you're answering that question, but I've clearly asked you a couple of times about your general views on a voice to parliament. The reason I would ask a question like that is quite well canvassed. It's that as far back as 2012, I think, you published an article where you were opposed to even the broad proposition of constitutional recognition. In 2019 you appeared in an ad for the Institute of Public Affairs where you referred to the Voice to Parliament as 'patronising' and 'political segregation', an incredibly loaded phrase when it comes to talking about race. So this is a long-held view that you have had about the Voice to Parliament concept, isn't it?

Ms Finlay: I've been answering your questions in good faith. My views are set out in the opinion piece. Certainly I would note that, as I said when I started in this role and was asked directly about those particular views, I have personal views and then views as a Human Rights Commissioner that I express in this role, recognising the institutional impact of the role. I would note that, from when I was appointed in November 2021, up until the publication of this opinion piece, I hadn't spoken publicly about the Voice or engaged in the discussion in any way. The opinion piece was only written as a consequence of the Human Rights Commission's statement being published and made public without reference to the fact that it wasn't a unanimous view. That's the avenue through which I've engaged in this. Since then, I've let the opinion piece speak entirely for itself.

CHAIR: I think your long-held views speak entirely for themselves as well. The last question I have is for the president. It this is more appropriate to ask you, President. After the article was published in the Australian, a statement was published on behalf of five former Australian Human Rights Commissioners—Brian Burdekin AO, Chris Sidoti, Graeme Innes AM, the Hon. Catherine Branson AC KC, and Edward Santow. All five of them have held the position of Human Rights Commissioner. They published a statement which can only be described as unequivocally rejecting the opinion of Ms Finlay. They said:

We unanimously disagree.

The reason they felt they needed to publish a statement like this, with five names as signatories, was because they believed that:

… Ms Finlay has made a serious error in stating that the proposed Voice to Parliament would somehow undermine human rights or the Constitution.

They held the view that Ms Finlay's view was 'likely to mislead Australians who will be required to vote on this proposal'. Do you agree with those commissioners?

Senator SCARR: Point of order, Chair: can you table that document that you're reading from, just so we can all have an opportunity to have that.

CHAIR: Absolutely. I'm surprised you haven't read it. I assume you've seen this statement, President.

Prof. Croucher : Yes, I saw it.

CHAIR: Do you agree with the statement of those commissioners?

Prof. Croucher : Those commissioners also speak for themselves. The view that was expressed in the statement that the commission published is the statement that I put out in this role as the statement of the commission and of myself in this role.

CHAIR: But my question to you was about a view that's been expressed by a large body of former human rights commissioners that it's not just a matter of having a diversity of views and everyone participating in political debate, however we go about it. It's actually that, because Ms Finlay holds a particular role as the Human Rights Commissioner, in reaching the view that she has she has 'made a serious error'—because of the view that she has that somehow it would undermine human rights or the Constitution itself—and that her views are 'likely to mislead Australians'. It's a very serious claim. Do you agree that Ms Finlay's views are likely to mislead Australians?

Prof. Croucher : I think the relevant point for the purposes of my response is to say that, as to the comments with respect to international law and the connection of the Voice proposition in the Uluru statement with international law, the views that were put forward in that statement align directly with those in our statement as the national human rights institution.

Ms Finlay: Could I add one thing to that, because it is quite a serious allegation that has been put in terms of my role, potentially, in misleading Australians, and the institutional integrity of that role.

CHAIR: To be clear, I'm quoting from a statement. I haven't put that question to you. Did you respond to this?

Senator PATERSON: A point of order, Chair.

CHAIR: I'm just asking a question.

Senator PATERSON: A point of order, Chair: you have just engaged in what I regard as an attempted smear on the reputation of the Human Rights Commissioner. The very least you could allow her to do is have an opportunity to respond to that smear.

CHAIR: I reject that statement. That's why I was actually making it clear to Ms Finlay—I'm not sure if you heard the first part of my response, Senator Paterson?—that I was actually reading from the statement. I hope that gives you that comfort, Ms Finlay.

Senator PATERSON: Thank you, Chair. In response to your question—

CHAIR: I am about to give Ms Finlay the opportunity to respond, but I wanted—

Senator PATERSON: You just asked me a question, Chair.

CHAIR: I wanted to clarify for you that you don't have the call; Ms Finlay is answering the question.

Senator PATERSON: Chair, point of order: you directed a question to me. I think I should have the opportunity to respond, and that is to say I heard every part of your question and your quotation and all the questions leading up to that, which were very clearly designed to make insinuations about the reputation of the commissioner for human rights, and I think that's inappropriate, particularly from the chair of this committee, who should be upholding good standards in the conduct of Senate estimates.

Ms Finlay: If I may respond to just briefly, Senator, and only to say that I would reject the assertion in that statement that my views are likely to mislead Australians. I've been very open in setting out my views and very willing to engage with people who express a different opinion or would like to discuss those views.

In terms of the question about the institutional role, all I would say is that I actually think a greater risk to the institutional integrity of the role of the Human Rights Commissioner or the Australian Human Rights Commission is the suggestion that individual commissioners should be discouraged from presenting different views when their perspectives may differ from the majority, and also the suggestion that, with the upcoming referendum, there may only be one answer that is valid from a human rights perspective. I'd reject that view. And the insinuation that's been made—

CHAIR: In the statement.

Ms Finlay: in the statement that that was in fact the case, I'd reject that.

CHAIR: Okay. Well, I don't think the statement was reflecting in that way but I'm glad that you've had an opportunity to respond.

The only other question I have I should have asked at the beginning. I asked you if you'd received any constitutional legal advice before drafting your opinion for the Australian. Did you consult with any Indigenous members or people were a part of the Uluru statement working group—anyone like that—before you drafted that statement?

Ms Finlay: Before I drafted the opinion piece?

CHAIR: Yes.

Ms Finlay: No, Senator. The opinion piece was drafted following the publication of the commission's statement—within that week.

CHAIR: Thank you very much. That's all the questions I have. Senator Polley, did you have any final questions?

Senator POLLEY: I do, for Commissioner Patterson. I just want to put on the record, as someone who has served in the Senate with you, Commissioner—

Dr Patterson: The only one!

Senator POLLEY: It says something for staying power; that's all I can say. I wanted to acknowledge the work you did during my time as shadow assistant minister for aged care in relation to raising awareness around age discrimination and elder abuse. Also, I want to acknowledge the work that you've done in raising awareness of homelessness and the growing cohort of older women that are finding themselves in that place. On all of those issues, you've done a fantastic job.

When it comes to your comments a bit earlier in relation to powers of attorney, I know you've held that view for some time. I'd like to acknowledge that my understanding is that that has been put back on the agenda with the Council of Attorneys-General. Maybe that's because there's an influx of Labor governments. So I, for a start, don't think that you should be taking that as a failure on your part at all. I think the work that you've done has been fantastic over a long period of time.

Dr Patterson: Senator Polley, it's been on the agenda every meeting.

Senator POLLEY: Yes, for a very long time. But I understand it's on the agenda. I think Senator Scarr has already acknowledged, as a member of this committee, that he will be working to ensure that the issue continues to be raised, and I give you that commitment as well. I just wanted to place on record the great service that you've done and wish you well in the next chapter.

So that we finish on a very positive note: you were talking to me and in fact extended an invitation regarding a project that is quite dear to your heart, and I think it would be nice if you could place on record some comments in relation to that project and extend the invitation to others to come and view the beautiful artwork.

Dr Patterson: Thank you very much, Senator Polley. In this job, I've seen some stuff that would curl your hair, especially regarding elder abuse, and ageism is at the basis of all of those things: age discrimination in the workforce; older women at risk of homelessness, which I wrote a paper about 6½ years ago and is now much more on the agenda; and elder abuse. All of them have an element of ageism, which is the least understood of all of them. We don't receive as much funding as many other areas do. I think children, disability and older people don't get a good look in, in terms of some of the projects that are available.

All the evidence, the World Health Organization evidence, shows that education and intergenerational projects are the two best ways of counteracting ageism. We've got a report coming out in a couple of weeks which shows some outstanding evidence that just alerting people to their own ageism means that they behave differently towards people in aged care and those areas. It's a nice piece of work. That's education.

The intergenerational part is something we've been working on with a young woman called Rose Connors Dance, who has a not-for-profit called embraced.com.au, Embraced Inc. We've paired 465 teenagers with 465 centenarians. In 1976, there were only 120 centenarians in the whole of Australia. We've paired 465 young people with older people, and the stories out of each of those pairings are just mind blowing and magical. They have painted their centenarians and met with them on numerous occasions. We've had an exhibition in every state, except the Northern Territory. The ACT ones are being shown here. We've chosen 100 portraits out of the 465—the artists themselves have chosen—and they're on exhibition at the Belconnen Arts Centre. That opened on Saturday. We had over 400 people at the opening, and, even there, some of those stories were unbelievable. I hope to do some research in the next eight weeks on some of the young people to demonstrate that they've changed as a result of that experience.

For anybody listening—Hansard, anybody—we're having a special viewing on 18 June at 5 pm, with some refreshments for people, so you can all come before the sitting week. I want you all on an early plane—I expect everyone on this committee to be there at five o'clock on the 18th! As I said, it's the Sunday before sitting. When you come back and you've got nothing to do and you're a bit bored, you can come along to the Belconnen Arts Centre and see these magnificent paintings and the stories that go with them. It's been an antidote to some of the awful stuff I've seen. Rose Connors Dance has just been told she's got a grant to do another intergenerational project, so hopefully we will see her as a leader in the area of breaking down ageism.

It goes both ways. I was talking to someone the other day who's got a very senior position and said, 'I'm too young,' at 42. I said: 'No you're not; that's ageist. You're not too young to have that position at 42.' So we have to beat ageism.

I just want to say I've enjoyed this job enormously. It has been a great honour and a privilege. I just wish I'd got those wretched powers of attorney harmonised. Thank you.

CHAIR: I have a couple of senators with a couple more questions to go. Senator Shoebridge, I will give you the call quickly, and hopefully we can get through these questions and move to the next witnesses.

Senator SHOEBRIDGE: Sorry.

Dr Patterson: I just realised I've spent two years of my working life in estimates, asking questions and answering them.

Senator SHOEBRIDGE: Two years and one day! Dr Patterson, thank you for your frank engagement with the committee, first of all. It's appreciated. Could I ask you about the very recent incident of what I can only describe as elder abuse, which was the tasering of a 95-year-old woman with dementia in her home in a nursing home in my home state of New South Wales. I don't know how to characterise that other than as elder abuse. Do you have any initial views on what happened to Clare?

Dr Patterson: I don't know the full story. I do find it somewhat strange that a police officer can't contain a 95-year-old person with a knife, but I don't know the situation.

I have stayed, as much as possible, out of aged care. Over 90 per cent of people are not in aged care or receiving aged care in the home. We have an Aged Care Quality and Safety Commissioner, we have an aged-care quality and safety advisory board, and I have three staff members. People ask me, 'What can your department do?' and I say: 'My department? It's three people.' I think that hasn't been mentioned here. Our budget for travel and IT and phones was $34,000; it's now $20,000, and we're expected to cover the country. I think you need to know that we do it on a very small budget. I have to say every commissioner works magic with the money that they get.

With this issue, I was appalled to see that happen. I think there should be a review: should it be the police that come, or should it be a mental health squad? We know that we have better outcomes with some forms of domestic violence, or when somebody with a mental illness does something wrong, when a mental health squad comes. People in aged care become very aggressive, and it's a mental illness, basically. I'm talking now as a psychologist. They're not responsible, sometimes, for their behaviour. I think that we need to revisit whether it's appropriate to have police responding to those sorts of incidents.

Senator SHOEBRIDGE: I absolutely endorse your observations. The thought that the appropriate response to a 95-year-old woman in a walking frame with dementia, whether or not she's carrying a steak knife, is police—that's so obviously wrong, isn't it? One of the concerns that has been raised is: there was a recommendation of the aged-care royal commission which police say makes it mandatory for them to be notified whenever there's an incident of violence or assault in an aged-care home. Police in my home state of New South Wales say that they're turning up dozens of times a week to nursing homes because of mandatory reporting provisions that call in the police. Has that issue been raised with your office at all?

Dr Patterson: No.

CHAIR: We're going to go to a break. We will have to come back to the Australian Human Rights Commission.

Senator SHOEBRIDGE: I only had one more question—

CHAIR: You always say you only have one more question!

Senator SHOEBRIDGE: of this commissioner. I'm not pretending that I don't have another question.

CHAIR: That's what I mean.

Senator SHOEBRIDGE: I'm happy to come back.

CHAIR: Thank you very much.

Proceedings suspended from 21:19 to 21:37

CHAIR: The committee will resume its hearing. We're continuing questions of the Australian Human Rights Commission. I cut you off, Senator Shoebridge, from your next question.

Senator SHOEBRIDGE: From my flow!

CHAIR: Yes.

Senator SHOEBRIDGE: Dr Patterson, in light of what we've seen in the most recent case in New South Wales—the tasering of a 95-year-old woman, Clare—do you think that there is a case to revisit that royal commission recommendation that effectively mandates police be sent into aged-care homes whenever there's even the most minor assault? Do you think that requires revisiting?

Dr Patterson: I think any recommendation is worth having a look at again. It's not written in stone or written in blood. As a psychologist, I think a different team most probably could handle it differently, or a trained police team, but we're asking the police to do the most amazing things, from horrific car accidents through to aged care. We're asking them to do a huge task. It's a state issue. I think the states really need to look at it. If they had actually done the equivalent of the mental health fly-in fly-out team, those rapid response teams, and they were doing a good job, would anybody say it's not exactly what the royal commission said? I think what we've got to look for is what's the best answer? It's going to get worse because the people in aged care are going to be frailer, and more of them will have dementia.

Senator SHOEBRIDGE: But it's one of these situations, isn't it, where if your only tool is a hammer then every problem looks like a nail. When you call in the police, and the tools that they have are batons, handcuffs, tasers and guns, then you're asking for the wrong resources when you have a frail woman with dementia—

Dr Patterson: I'm agreeing with you! I think that maybe the states should test the sorts of teams we have for somebody who's younger and mentally ill—some are actually quite violent when they deal with them—who have been trained in doing that, to see whether that's a better response.

Senator SHOEBRIDGE: Yes.

Dr Patterson: Would anybody then query it and say, 'You haven't done what the royal commission said'? I think the answer would be, 'We've achieved the outcome.'

Senator SHOEBRIDGE: Yes. It's focused on ensuring that people's rights are upheld, not that rights are abused. That's the point of that recommendation.

Dr Patterson: And we had another episode where somebody had double handcuffs on.

Senator SHOEBRIDGE: Yes. From an age discrimination perspective, seeing those images and those responses, if you had the resources you'd probably want to look into it—

Dr Patterson: No, not necessarily. As I said to you, one of the problems is that some of the issues with age discrimination are not age discrimination: they're ways that an older person is treated, but are they age discrimination? Maybe other people who are younger are treated in the same way. And we do have the Aged Care Quality and Safety Commission, and we do have the Aged Care Quality and Safety Advisory Council. There's a limit when one person is commissioner. I think that a couple of the other commissioners, and the president, have said this: we cannot do everything, especially on the budget.

Senator SHOEBRIDGE: I'm not inviting you to. Particularly, I think you said that your support budget—for IT, travel and office support—has been cut from $34,000 to $20,000. Is that what you said?

Dr Patterson: We had that situation, yes, and it hasn't been restored.

Senator SHOEBRIDGE: When was that cut?

Dr Patterson: Two years ago.

Senator SHOEBRIDGE: Two years ago, and it hasn't been restored. Can you do your job effectively with that budget?

Dr Patterson: Even with $34,000 it was quite difficult. Again, if people ask you to speak then you have to ask if they could pay for you to come. Every time you do that and every time you're relying on money coming in for projects, you're giving away a bit of your independence.

Senator SHOEBRIDGE: Just quickly, to get a sense of perspective, I might also ask the National Children's Commissioner about their staffing resources. I'm sorry to make the hot seat go again, Dr Patterson.

Dr Patterson: Are you finished with me now?

Senator SHOEBRIDGE: I am, yes.

Dr Patterson: Thank you.

Senator SHOEBRIDGE: I wouldn't have expressed it in that way! Commissioner Hollonds, can you describe to the committee your statutory position's financial situation? What's the support budget that you have, and what is the trend over time?

Ms Hollonds : All commissioners have the same base this year, which is $20,000 for expenses. I have 1.8 policy staff in my team and an admin assistant. As I understand it, that is now less than what the role had when the position was first established 10 years ago. Senator Rice made reference to the fact that there were two parliamentary inquiries held at that time, 10 years ago, which concluded that the funding should be reviewed. My understanding is that it hasn't been.

Senator SHOEBRIDGE: It gets worse still: your funding was reviewed and your support budget was cut from $34,000 to $20,000.

Ms Hollonds : Indeed, yes.

Senator SHOEBRIDGE: My recollection of those reviews is that the intent was not to review the support budget down but, in fact, to review the budget up.

Ms Hollonds : That's right. I've read the reports from those parliamentary inquiries 10 years ago, and there was concern expressed by people putting in submissions that the statutory functions could not be performed on that level of funding. I have certainly found that to be true. And the funding is now less—let me be clear about that—than it was 10 years ago, and it is not possible to perform the statutory functions under the act.

Senator SHOEBRIDGE: And even less possible with a $20,000 support budget.

Ms Hollonds : That's right. All the project work that I've done—I'm halfway through my term—has been funded externally.

Senator SHOEBRIDGE: Again, do you find that it compromises—or, at least, has the perceived potential to compromise—your independence?

Ms Hollonds : Correct. This is not just a matter of money, it's a matter of what the point was of setting up a National Children's Commissioner role if the person in the role is unable to act with independence on behalf of the children of Australia. I don't think it's what was intended when the position was first established.

Senator SHOEBRIDGE: With $20,000—is that all of your travel?

Ms Hollonds : Yes.

Senator SHOEBRIDGE: And your IT?

Ms Hollonds : The IT that I've got I got when I started 2½ years ago. There has been no IT as such. It's all the expenses: travel, accommodation, any purchases—that kind of thing. That was the expense budget that I had this year.

Senator SHOEBRIDGE: Obviously you can't be a 'national' children's commissioner if you can't travel around the country?

Ms Hollonds : I've been to the Northern Territory, I think, three times in this period. It's not cheap to go to remote communities et cetera. It's really hard.

Senator SHOEBRIDGE: Ms Smith or Professor Croucher, how is it that commissioners have their basic core budget for doing their job, for travelling around the country, cut from $34,000 to $20,000? Obviously you can't do it. I can't conceive how you did it on $34,000. You obviously can't do it on $20,000. Where is the cry for additional resources coming from the leadership here? Where do we hear that? I haven't heard from you, as the president, a clear statement that, actually, your commissioners are being starved of funds and can't do their job.

Prof. Croucher : The advocacy that we've made on that front has been very clear advocacy with the department and the attorneys.

Senator SHOEBRIDGE: It hasn't worked.

Prof. Croucher : We've had a good look at our core budget. The challenge—using that word again—to administer a budget and keep within it has been the principal issue for us. We've made clear with the department and with attorneys past and present what the budget should be for staffing. Each of our commissioners gets the same commitment of core staff, plus a small discretionary budget—as Commissioner Hollonds has clearly made the point, it was reduced a couple of years ago as part of needing to fit within our budget. The budget is not sufficient to discharge our statutory mandates properly, hence the point that we keep making that we have to be staffed at a level of a certain number of staff because that provides the staffing resources to each commissioner independently of any other project work that can be secured. There is, in addition to the specific amount that Commissioner Hollonds and Commissioner Patterson referred to, a policy budget that provides additional funding for commissioners, particularly where those commissioners aren't able to draw in extra specific project funding. There are all the other resources of the commission, but a point that we have made very clearly within this forum, with the department and with attorneys past and present is that, in order to discharge our mandates independently and thoroughly, we need to be staffed at a level, ideally, of 145 core staff.

Senator SHOEBRIDGE: I've said this before: if you take another $13 million out of this commission's budget, as the government's budget papers propose, you may as well turn the lights off because you can't pretend to have a National Children's Commissioner who can't travel around the country. You can't pretend to have an aged-care commissioner who doesn't have anything like the resources—

Prof. Croucher : We don't have an aged-care commissioner.

Senator SHOEBRIDGE: Age Discrimination Commissioner. You can cavil with the minor form of my language, but you can't pretend to have an aged-care commissioner that's going to do a national job with a $20,000 support budget and grossly inadequate staffing. I would expect to see the leadership of the commission make that very clear to us in the opening statements. It's impacting each and every one of your commissioners and undermining their independence.

Prof. Croucher : Thank you. I can point to the opening statements where those points were made in the past. The leadership of the commission has not been absent from these discussions. The point that I've made repeatedly is that an ideal staffing quotient is 145 core staff. Our commissioners need to have the ability to discharge their mandates. I completely agree with you. I would point to my opening statements, where the budget questions have been addressed, and repeat that it is a subject of ongoing discussion with the department and with the ministers.

CHAIR: Senator Scarr, you have questions?

Senator SCARR: Commissioner Finlay, I have some additional questions for you. At the outset I want to congratulate you on the grace with which you've conducted yourself over the last few months. Some of the attacks which have been made against you in documents were quoted by the chair. I think it takes a lot of courage to put forward a view in the context of the current debate in the terms in which you've put it. I really genuinely admire your moral and intellectual courage at this point in time. So thank you.

I had a wry smile when the chair asked whether or not you'd sought constitutional advice or legal advice prior to putting pen to paper in terms of your opinion piece. Could you please outline to us what your qualifications are, including particularly your experience with respect to constitutional law?

Ms Finlay: I am a lawyer by training. I have a law degree from the University of Western Australia. I have a dual masters degree from the National University of Singapore and New York University specialising in international law and human rights and in international and comparative law. I've worked as a state prosecutor. With respect to constitutional law I taught for around 10 years at Murdoch University, with one of the areas that I researched and taught in being constitutional law. I've held a variety of other positions before taking on this role.

Senator SCARR: The chair provided you with a list of eminent legal personalities who have a different view to you with respect to the matters which you discussed in your opinion piece. Is it true to say that there are a whole raft of opinions from eminent legal jurists which are on the other side of the debate who have raised similar concerns to the concerns you raised in your opinion piece?

Ms Finlay: There are. Certainly on any constitutional law issue of importance, if the issues were that simple we wouldn't need lawyers at all.

Senator SCARR: Do those people who perhaps have expressed views publicly—and we know, unfortunately, how difficult the public environment is for the expression of these views at this point in time, so no doubt there are a lot of people who are too concerned to express their views because they may be attacked—include the late David Jackson AM KC, who the Hon. Andrew Bell, the Chief Justice of the New South Wales, on his passing noted on 15 May 2023 that he was a giant of the Australian Bar and had appeared in many, many constitutional legal cases?

Ms Finlay: Yes.

Senator SCARR: Do those people eminent legal jurists who've expressed views similar to yours include the Hon. Ian Callinan, who was a leader of the Queensland Bar and also served with great distinction on the High Court of Australia?

Ms Finlay: Yes.

Senator SCARR: Do those people include Emeritus Professor Gabriel Moens, who taught me constitutional law at the University of Queensland and is, in fact, one of the co-authors of the annotated Constitution of the Commonwealth of Australia published by Lexus Nexus?

Ms Finlay: Yes. He also served as the dean at Murdoch Law School when I taught there.

Senator SCARR: Do those eminent legal jurists who have expressed similar concerns to you include the Hon. Terence Cole, who served on the New South Wales Court of Appeal and also led two royal commissions with great distinction?

Senator SHOEBRIDGE: You can't say that about the first of his royal commissions. It's highly questionable.

Senator SCARR: That's an opinion. I'm simply asking—

Senator SHOEBRIDGE: You can't say that.

CHAIR: They're all opinions. That's the fun bit about this.

Senator SHOEBRIDGE: The Cole royal commission was a disgrace.

CHAIR: They're all opinions. Senator Shoebridge, if you could just let Senator Scarr put his opinions.

Senator Watt: I remember it very well. It was completely biased.

Senator SHOEBRIDGE: It was a disgrace.

CHAIR: I don't think we're prosecuting that tonight.

Senator SCARR: Commissioner Finlay, did those legal jurists who've expressed views similar to yours include the Hon. Nicholas Hasluck, who served on the Supreme Court of Western Australia?

Ms Finlay: Yes.

Senator SCARR: Do those eminent legal jurists who have expressed views similar to yours include the eminent professor Augusto Zimmermann?

Ms Finlay: Yes.

Senator SCARR: Do those eminent legal jurists who have expressed similar views to you include Professor James Allan of the University of Queensland, who is the Garrick Professor of Law at the University of Queensland and a specialist in constitutional law?

Ms Finlay: Yes.

Senator SCARR: Can I ask you—

Senator PATERSON: Don't stop, Senator Scarr—there's more!

Senator SCARR: We're running out of time and Senator Shoebridge has told me he wants to go on to the next topic.

CHAIR: No, no.

Senator Watt: I don't anyone think anyone is denying there's a list of conservative jurists, some of whom you have named, who have raised reservations. I don't think anyone is denying that.

Senator SCARR: Only one side of the story, though, was put in the previous questioning, so I'm providing Commissioner Finlay with an opportunity to put a balanced view in this respect. Commissioner Finlay, I was very impressed with your articulation of your approach—and this is an approach I've been taking—to actually seek out different views with respect to these questions and read and consider those different views and actually test your own beliefs and your own thoughts. It reminded me of the articulation as to the very importance of freedom of speech in John Stuart Mills's essay on liberty, where he talked about how it isn't just a question of freedom of speech. It's a question of the freedom of others to hear other views so they can actually develop their own arguments, their own views, test their beliefs and perhaps even change their views. Do you agree with that concept of the importance of freedom of speech? Also, the corollary of it is the importance of people having an opportunity to hear other views and to test their own beliefs and propositions.

Ms Finlay: Indeed. The president referred to this earlier and there was a discussion about the importance of diversity. I think diversity of perspective and diversity of thought is important. When you're incorrect, it's important to hear other views so that you can correct areas where you may be mistaken. But, even if you're entirely correct in your views, it's important to hear other thoughts and other opinions so you can strengthen your views, understand why you hold those views and look at whether they can be improved in any way.

Senator SCARR: Exactly. President, do you agree with that concept? As I said, I was impressed by the fact that the Human Rights Commission in your statement—and you have given strong testimony in this regard—considered it extremely important to say that there is a diversity of views in Australia with respect to that question and there needs to be respectful discourse in this regard and recognise that there are legitimate differences of opinion. Do you agree with that?

Prof. Croucher : Yes, I do. The point is that those differences of opinion when they go to the issues under consideration and not attacks on individuals are to be supported under the rubric of freedom of speech, as you say. Respectful engagement on the issues I wholly concur with. I do not support ad hominem attacks.

Senator SCARR: I congratulate you on the collegiality within the commission under your leadership in that regard. I think that's an outstanding example to civic society as to how we should be conducting the debate.

Commissioner Finlay, turning to your article, you put forward the proposition:

My message is simple. You can believe passionately in human rights, equality and the importance of reconciliation and decide—based on your belief in the importance of those principles—to vote No. A constitutional referendum is always an occasion of significance. During the coming months I would encourage all Australians to think carefully about this proposal and what it will mean.

Is that still your position?

Ms Finlay: Yes, that is still my position.

Senator SCARR: Okay. Thank you very much.

CHAIR: Those are all the questions we have for the Human Rights Commission. Thank you very much for appearing today.