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Legal and Constitutional Affairs Legislation Committee
28/05/2015
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Human Rights Commission

Australian Human Rights Commission

[09:06]

CHAIR: Thank you, Minister. I welcome the president and officers from the Australian Human Rights Commission. I understand that this is Ms Broderick's last appearance before this committee; I am sure she will be shattered about that. I do want to acknowledge the work that Ms Broderick has done as Sex Discrimination Commissioner over the years since she was appointed in 2007. She was also the Age Discrimination Commissioner between 2007 and 2011, and we are all aware of her advocacy on the prevention of violence against women, eliminating sexual harassment, improving lifetime economic security for women and balancing paid work and unpaid caring responsibilities, promoting women's representation in leadership and strengthening gender equality agencies. If you look at this committee you will see how successful you have been, at least in a parliamentary sense, but I know that you have been a huge influence more widely, that you have a long CV of things that have happened. I just wanted to acknowledge your service to Australia in the time you have been in that position and wish you all the best for the future.

Ms Broderick : Thank you.

CHAIR: With that I move to the commission. Professor Triggs, welcome. Did you want to make any opening statement?

Prof. Triggs : Thank you, Senator Macdonald. I would like to take the opportunity to make a brief opening statement, and, as you have noted, I do appear today with all of the commissioners of the Australian Human Rights Commission along with Ms Julie O'Brien as the director of the legal unit. There are three matters that I would like to raise briefly. The first is recent work of the commission. We have, at the Attorney-General's request, launched a new inquiry led by Commissioner Susan Ryan into employment discrimination of the aged and those with disabilities. Just as the Age Discrimination Act of 2004 was a leader, both globally and for Australia, so too is the inquiry into the incidence of discrimination against the aged and disabled. While we are aware, through the commission's investigation and complaints processes, that many matters of complaint arise in the context of employment, this is the first time we will have a national evidence-based survey of how pervasive that discrimination is. We hope that the inquiry will inform government policy in the future, and I am sure that Commissioner Ryan will be happy to answer any questions you might have about that inquiry.

The second point I would like to raise concerns the public interest immunity claim that the commissioner has made in response to information and documents requested by Senator O'Sullivan. The claim is set out in the commission's response to the questions on notice, and you do have a full legal explanation for that position, but I would like to take a moment to set out the grounds for our claim and the harm to public interest that could result from disclosure.

CHAIR: Unfortunately, Senator O'Sullivan is not here at the moment. What was the question?

Prof. Triggs : There are four elements to the request made by Senator O'Sullivan. The first three concern all the documents relating to the cases of Mr MG, Mr Charlie and Mr Basikbasik. The fourth element is that we release the name of Mr MG in relation to whom I have given a notice to retain his identity. Those are, of course, entirely proper questions from Senator O'Sullivan, but I would like to explain, if I may, why we would like to make a public interest claim in relation to those issues.

Senator JACINTA COLLINS: Chair, I think it might be helpful at this stage if we explain to the Human Rights Commission that we need to clarify the status of their answers to questions on notice. We have had some delays. I am not familiar with the answers that you are referring to. We may need a level of explanation that is deeper than you may originally have thought.

CHAIR: Do you have a reference to the question on notice number?

Prof. Triggs : We will very quickly find it for you. We have given in that answer a fairly detailed legal explanation.

Senator JACINTA COLLINS: I just want you to appreciate that we probably have not seen it.

Prof. Triggs : You have not seen it yet, in which case you will not mind if I spend a minute or two explaining what our submission is to you. But you may prefer to take more time.

CHAIR: What I am concerned about is you having to repeat this all again when Senator O'Sullivan is here. He is here now. I knew he was not far away so that is why I was going to suggest that the commissioner might go on to some other matters and come back to that.

Senator O'SULLIVAN: Thank you.

Prof. Triggs : If I could answer the question?

CHAIR: I am sorry to interrupt all the time.

Senator JACINTA COLLINS: We are just printing off the questions and the answers now.

Prof. Triggs : They are questions 106 and 107.

CHAIR: Please continue. Your suggestion of being a bit more fulsome might be appropriate, because I am not sure if we have got them.

Senator O'SULLIVAN: I have copies here.

CHAIR: They are on their way so perhaps you do not need to be quite as fulsome, but anyhow keep going, Professor Triggs.

Prof. Triggs : Mr Chairman, please stop me if this is more than you want, or ask me if it is not sufficient.

CHAIR: Yes.

Prof. Triggs : Just to repeat that we would like to submit to the committee an argument that we would claim public interest immunity in relation to the requests by Senator O'Sullivan in relation to Mr MG, Mr Basikbasik and Mr Charlie. We have made the public interest immunity claim on three grounds. One is that the documents fall within the secrecy provisions of section 49 of the Australian Human Rights Commission Act. The second is that the disclosure of the documents would have a substantial adverse effect on the proper and efficient administration of the work of the commission. The third is that the disclosure of the documents would unreasonably affect a person privacy.

To give a little more detail on the first of those grounds relating to the documents concerning the affairs of another person, being an individual complainant, that fall within the secrecy provisions of section 49 of the act, the general position is that those documents should not be made public and ordinarily the section would prevent the commission from being compelled by a court or other authority to disclose documents the subject of that request.

The second ground for making the public interest claim is that the disclosure of the documents would have a substantial adverse effect on the proper and efficient conduct of operations of the commission. Two of the functions of the commission are to inquire into and attempt to conciliate complaints and to promote an understanding and acceptance and public discussion of human rights in Australia. The commission considers privacy and confidentiality to be fundamental requirements of the successful operation of that complaint function. Privacy and confidentiality encourages voluntary participation in the process and allows the parties to engage meaningfully in conciliation, to have frank and honest discussions to come up creative solutions to the issues, to reach agreement in relation to longer term educative and systemic responses to discrimination and breaches of human rights, and to voluntarily provide information and documents and to resolve complaints without the need to either report to parliament—as we do quite frequently—or for the complainant to go to the Federal Court.

Representations are also made by the commission staff to respondents that any information and documents provided as part of the complaint process will not be disclosed save as is required by law. To dilute the confidentiality of complaints may reduce the number of complaints and correspondingly increase the number of matters taken to the Federal Court for resolutions under law. This will have significant cost implications for all parties and increase the burden on the Federal Court.

The final ground for making the public interest immunity claim is that disclosure of the documents would unreasonably limit a person's privacy. The documents contain personal information of those individual complainants Mr MG, Mr Basikbasik and Mr Charlie. The commission submits that disclosure of that information is not reasonable in the circumstances. Many of the documents include sensitive information that the individual complainants would not wish to have disclosed without their consent and they include, for example, case reviews as well as documents relating to security decisions, visa applications, medical assessments and incident reports. These documents are not publically available but are held by the Commonwealth, the Department of Immigration and Border Protection and are subject to the privacy obligations of that department. Individual complainants also sign a consent form to allow the Department of Immigration to release documents relevant to their complaint to the commission. For these reasons the commission submits that disclosure of these documents would not be reasonable; indeed, it would be an unreasonable invasion of privacy. Some of the documents contained on the files contain documents which are in the public domain but are not covered by public interest immunity, and we would be very happy to supply those if requested.

May I add also that, if the commission were required to make details about particular human rights complaints available publically, this would have implications not only for the commission but for other bodies such as ACCC about anticompetitive conduct, for ASIC about breaches to corporations law or for AUSTRAC about breaches of regulatory requirements aimed at preventing money laundering and the financing of terrorism.

Lastly, could I refer to the request to disclose Mr MG's identity. That has been specifically requested by Senator O'Sullivan. I issued a direction pursuant to section 14(2) of the Australian Human Rights Commission Act which prohibited the disclosure of that identity. That section allows the commission to give such a direction where necessary to protect privacy. MG requested that his identity and that of his son not be disclosed to protect their privacy. The commission submits, and respectfully does so, that it is not in the public interest to reveal his identity as this would have an unreasonable impact on that privacy. We do realise of course that you ultimately will make the decision as to whether or not that immunity request will be accepted. One suggestion that we would like to make—if you decide that you would not accede to that immunity request—would be to disclose the documents in camera,which may be a solution you could to consider.

Senator JACINTA COLLINS: Sorry, Professor Triggs, that is not available to us during estimates.

Prof. Triggs : I see. That was a compromise we were suggesting, but, even if that were available to you, we are still concerned about privacy and would prefer to seek the consent of the complainant before granting access to those documents. Senator Macdonald, that is actually a briefer version of our legal view, but my advisor can give you a little more detail on that.

I would just like to finish by again mentioning and confirming your comments—thank you very much—with regard to the end of Ms Elizabeth Broderick's eight-year service as the Sex Discrimination Commissioner. She has been an outstanding commissioner with a national and international reputation for promoting the rights of women, as you have observed. She has played a unique role in working directly with the Australian Defence Force and building a respectful culture for women. She has conducted valuable prevalence data research on discrimination against women on the ground of pregnancy. Elizabeth is very well recognised for her initiative in developing the idea of male champions of change and she has worked with the business community to encourage the promotion of women to senior executive positions. All of us wish Elizabeth well in the next phase of her career when she steps down in early September. Thank you very much.

CHAIR: Thank you, Professor. With the claim for immunity—that is something as you rightly say the committee will have to determine—I wonder if the process would be helped by having some questions about the issues raised by Professor Triggs before, without going to the substantive facts of the issue, on the claim for confidentiality. For example, I might just say, Professor, you are indicating MG—or NG is it?

Prof. Triggs : MG.

CHAIR: I am not familiar with MG at all or what the issues were, but certainly with Basikbasik the resolution on the commission's finding become very, very public, and recommendations are made, which I understand the government has rejected in any case. Using this as an example, if the commissioner's determinations are to be made so very public, isn't it then relevant that the Australian public understand who this guy is; what it is; what led the commission to those conclusions so that we all have equal information about the guy, as we now have about the commission's recommendations quite clearly in his favour.

Prof. Triggs : I do understand the quandary that we are all in in relation to these matters, because quite clearly the public has a real interest—and of course the Senate has a very real interest—in how these decisions are reached. The reports that we make to parliament are quite comprehensive and they do include all the evidence upon which we have relied in reaching a decision based on the international legal principles—in particular, the International Covenant on Civil and Political Rights. There is a confusion in the public mind, or a concern, that they do not understand these decisions, because I do not think it is understood well that we make decisions based on those international instruments rather than on the state of domestic law, so we appear to have disconnect between domestic law and international law.

Coming perhaps closer to answering your question, it has been absolutely fundamental to the role of the commission that we can handle the 21,000 inquiries and complaints, because they are confidential—in other words, we provide through parliament and through the taxpayer a free and accessible means of achieving some level of justice and systemic change but key to achieving that is a level of confidentiality. People sit around a table in our commission offices in Sydney, or sometimes in the offices around parts of Australia—it is a national service—and we can reach a compromise or a conciliation in about 70 per cent of those cases, because of confidentiality.

CHAIR: Can I just interrupt you, I am sorry for a moment. Do the committee or the witnesses have any objections to programs today or proceedings today being photographed?

Senator WRIGHT: Under standard arrangements, it is fine.

CHAIR: Everyone is happy? That is okay.

Senator Brandis: Mr Chairman, when Professor Triggs is finished her remarks, I wish to make some remarks as well in relation to this issue.

CHAIR: Professor Triggs is answering my question at the moment, but please continue.

Prof. Triggs : I really wanted to explain, if I may, that, while I understand the very proper public and parliamentary interest in how these cases come to be decided—and those reports are in the public realm, so as much of the information as possible is in those printed reports tabled in parliament—it is crucial to the process that the complainants have confidentiality. We are concerned that, if they have to come to us knowing that everything they tell us will be on the public record, we would not be able to achieve the level of conciliation that we currently achieve, which is around 70 per cent.

CHAIR: I forget what questions we have asked—if I can confine it to Basikbasik—which you are claiming public interest immunity from answering. But my point is: the conclusions of the commission are very, very public and yet half the story is apparently not being told. Can you specifically refer me to which part of the questions we asked about Mr Basikbasik you feel difficulty in answering?

Prof. Triggs : First perhaps I could just point out that Mr Basikbasik agreed to his name being in the public arena, but I will pass to Ms O'Brien with regard to the content of our answer to the questions in relation to the Basikbasik case.

CHAIR: I would go to you, but I am conscious that the minister has to leave. What time are you leaving, Minister?

Senator Brandis: In about 15 minutes.

CHAIR: I might just let Ms O'Brien answer this, and then I will come to you, Minister.

Ms O'Brien : You asked a number of questions on the last occasion seeking some information in relation to Mr Basikbasik's complaint. Those answers have been provided. It is not in relation to those answers that the public interest immunity claim is made. It is in relation to a request for all the documents that form part of his complaint-handling file. You rightly point out that a lot of information about Mr Basikbasik is now in the public domain, as the document has been tabled in parliament. We advise the complainants, when they bring a complaint to the commission, that the information will be treated with absolute confidentiality. At the point when conciliation has been unsuccessful but a finding of breach has been made, we ask them if they would like their identity suppressed on any basis, including that they consider it would be an invasion of their privacy. Mr Basikbasik did not seek such a direction. It may be that he is happy to have his entire individual complaint-handling file released. We would like the opportunity to seek his consent, in accordance with our usual processes, before releasing all of that personal information in relation to him.

CHAIR: Have you done that?

Ms O'Brien : We did not do that. We responded to the question on notice setting out our public interest immunity claim and asking if the senator would like us to seek Mr Basikbasik's consent.

CHAIR: We might come to that. The conundrum is that the commission's findings are very public. Most Australians—I think I can say, with respect—would disagree with the commission's findings in view of what we know of the background of the case, but it may be limited, and that is why there is this wish to understand it a bit better. Perhaps other senators might want to pursue that too, but I might just pause now and allow the Attorney to say some—

Senator O'SULLIVAN: Can I make a contribution just before that?

CHAIR: If it is a brief one, yes.

Senator O'SULLIVAN: This line of questioning may or may not go forward. If we go into this space, we will be in it for a long time, and the only comment I would make is: I would prefer to have the Attorney present during the course of that debate. Perhaps we need to take this aspect of this morning and put it over until the Attorney is here. We will not deal with it in 15 minutes, and he will be absent when much of the dialogue occurs, if that is the case, Chair, but I am in your hands.

Senator Brandis: I thank Senator O'Sullivan for his solicitousness of my own convenience this morning, but I really only do want to say one thing, because this is ultimately a matter for the committee. May I proceed?

CHAIR: Yes, please.

Senator Brandis: Let me make that obvious point first. A claim for public interest immunity to be determined according to the principals set out in the Senate order of 13 May 2009 is a matter for the committee. There is no right of the commissioner or indeed the government to not produce if the committee decides that it wants the documents produced. The second point I would make is that there is no explicit power conferred on the presedent by the Human Rights Commission Act to make claims of public interest immunity on behalf of the commission. In that regard, I do not know if the committee is familiar with it or if indeed if Professor Triggs is familiar with it, can I refer you please to the government guidelines for official witnesses before parliamentary committees and related matters, which I will table. The most recent iteration was published in February of this year. It discusses among other things under the item 'Conduct of hearings by committees' the question of public interest immunity claims. Let me just read the relevant paragraphs. Paragraph 4.4—

CHAIR: Sorry, is this a Senate ruling or a government ruling?

Senator Brandis: No, these are government guidelines which bear directly on this.

CHAIR: Okay.

Senator Brandis: They do not bind the committee, but they obviously should be instructive.

CHAIR: But they are guidelines to the government, not to the parliament?

Senator Brandis: Correct.

CHAIR: Okay.

Senator Brandis: That is why I said, first, that ultimately it is a matter for the committee.

CHAIR: Sure.

Senator Brandis: Paragraph 4.4 says this under the item 'Public interest immunity':

While the parliament has the power to require the giving of evidence and the production of documents, it has been acknowledged by the parliament that the government holds some information which, in the public interest, should not be disclosed.

Then, under the subheading 'Claims to be made by ministers':

Only ministers, or in limited circumstances statutory office holders, can claim that information should be withheld from disclosure on grounds of PII. However, committees, and especially Senate estimates committees, receive most of their evidence from officials, and it is officials who are most likely in the first instance to be asked to provide information or documents that might be the subject of a PII claim. Officials need in particular to be familiar with the Senate Order of 13 May 2009 on PII claims.

Then the document goes on in paragraph 4.6.3:

If a minister concludes that a PII claim would more appropriately be made by a statutory office holder because of the independence of that office from ministerial direction or control, the minister should inform the committee of that conclusion. A statutory office holder might, for example, consider the disclosure of particular information would be likely to have such a substantial adverse effect on the proper and efficient conduct of the operations of his or her agency that it would be contrary to the public interest to disclose that information.

And then under paragraph 4.6, grounds of a PII claim the principal grounds are listed in nine subparagraphs. Let me read them very quickly:

(a) damage Australia’s national security, defence or international relations

(b) damage relations between the Commonwealth and the States

(c) disclose the deliberations of Cabinet (other than a decision that has been officially published)

(d) prejudice the investigation of a possible breach of the law or the enforcement of the law in a particular instance

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source or information, in relation to the enforcement or administration of the law

(f) endanger the life or physical safety of any person

(g) prejudice the fair trial of a person or the impartial adjudication of a particular case

(h) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions of the law, the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures

(i) prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

I simply wish to make two points acknowledging that ultimately this is a matter for the committee. First of all, as appears from the passages from which I have read, claims for public interest immunity are made by ministers, not statutory office holders, unless the minister considers, given the particular nature of the statutory office, the claim is best made by the statutory office holder. I was not consulted in advance about the making of this claim. I do not make this claim on behalf of the commission or on behalf of the government. Secondly, of the grounds set out in paragraph 4.6, there is no general ground of privacy. I table the guideline.

CHAIR: Thanks, Minister. Again, the committee is bound by Senate rules, not by government rules. I am not sure of the source of the government's rules and I suspect, without really knowing, that this would also require an examination of those rules—and the Senate rules—compared to the acts setting up the Human Rights Commission, which I think Professor Triggs mentioned contained various provisions relating to the same matter. It seems that there may be three lots of conflicting advice. We of course only—

Senator Brandis: The point I am making does not bear on the relationship between the Senate and the Senate committee, and those appearing before it. It bears on the relationship within the executive government between the minister, and an executive agency and a statutory office holder. I am simply informing the committee that I do not make this claim, as the minister was not consulted in relation to it. If you look at the relevant provisions of the Human Rights Commission Act, in particular section 49, there is no self-sufficient power vested in the President to make a public interest immunity claim. On that note, I am afraid I must excuse myself.

Senator COLLINS : I think we will need to take, as a committee, a closer look at the advice here. Our preliminary advice in relation to a statutory officer making a public interest immunity claim was that that was available independent of the minister, so I would like to look at the advice the minister has been given for this statement and the advice the secretariat was obviously provided earlier to weigh those matters. I think it is appropriate at this stage we indicate that at this point in time our advice was different to what the Attorney just outlined.

CHAIR: Yes. Clearly, there is a conflict of interpretation in three different sets of rules that have been raised with us and, without in any way denigrating from the committee's expertise, I have the feeling that we are going to have some difficulty in assessing all of the written words from three various areas.

Senator WRIGHT: Chair, could I just ask something, please?

CHAIR: Yes, but just let me finish. My inclination is to leave this matter for the moment and go on with other matters that we might question the Human Rights Commission about, and then perhaps at morning tea time have a bit of a think and get some advice from the Clerk of the Senate on where we should go with these things. That is just an indication of what I am thinking.

Senator WRIGHT: I agree with that proposal, because I was just going to make the comment that, if we were going to have further discussion about this, then I think we obviously have to have the Attorney here to be able to ask questions of him to assist us.

Senator O'SULLIVAN: For once in 100 years, I concur with the senator's remarks.

CHAIR: Professor Triggs, we might just leave those issues.

Professor Triggs : I wonder if I could just make one comment for the record.

CHAIR: Yes.

Professor Triggs : That is that we did consult the Attorney-General's Department as to how best to raise this matter. We were advised that the way in which we have presented our submission was the appropriate methodology and that we were entitled to do this through the department. We hope that the process has been a correct one. We, obviously, are entirely in your hands as to how you want to handle this and we will respect that.

CHAIR: Without disclosing any confidence, I might indicate that Professor Triggs actually wrote to me seeking a meeting about some matters, one of which was confidentiality. My advice to the professor was not to have a private meeting with me but rather to raise it at this hearing in the opening statement—which, I expect, is another reason why you have. The minister has now gone and perhaps he had not been fully briefed by the department—I do not know. Anyhow, if we defer these things just for the moment, Professor, you mentioned three things that you wanted to talk about in your opening address. One was recent work; one was public interest immunity; one was—what did you say at the beginning?

Prof. Triggs : I just wanted to draw attention to the new work that we have just taken on at the request of the Attorney and is led by Commissioner Ryan. It concerns a national survey on age and disability discrimination in the employment area.

CHAIR: Yes, that one. Then the public interest immunity. What was the third one?

Prof. Triggs : It was an acknowledgement of Elizabeth's contribution. Those were the three matters.

CHAIR: Of course. That was the most important.

Prof. Triggs : Indeed.

CHAIR: We will leave the public interest immunity and matters to which that relates for the moment and proceed with other questions we might have of the Age Discrimination Commissioner. Does anyone have any questions for the commission?

Senator JACINTA COLLINS: Yes.

CHAIR: Perhaps one other thing I should say at this stage, Professor Triggs, is there has been a lot of contact through the secretariat on who we want you to bring—which of your commissioners. I always say that whomever the commission wants to bring along to these hearings is entirely a matter for the commission. But the committee does at times say, 'We particularly want Commissioner X, Y and Z.' I think we have done that in this case. In a broader sense, who the commission brings is entirely a matter for you. But if we have particular issues that we want raised, we will give you, hopefully, reasonable advice that we want that particular commission here.

Prof. Triggs : That is a very rational and sensible way for us to work with you and the secretariat. It is very helpful for us in planning our budgets and planning the use of our commissioners' time.

Senator JACINTA COLLINS: Am I correct in understanding that we have all commissioners present today?

Prof. Triggs : We do, yes.

Senator JACINTA COLLINS: I would like to join with the chair in his comments, and indeed your own, Professor, in relation to Ms Broderick's contribution. May it continue in whatever role follows from here. So thank you. Are we aware of the ongoing arrangements within the commission following Ms Broderick's departure or is that yet to be determined?

Prof. Triggs : We have had internal discussions to ensure a smooth transition period when Ms Broderick steps down from her position. We, of course, await an appointment to that position in the future.

Senator JACINTA COLLINS: When does the current appointment finalise?

Prof. Triggs : The first week of September this year.

Senator JACINTA COLLINS: So we need to encourage the government to fill that appointment.

Prof. Triggs : We would be delighted.

Senator Birmingham: I think, Senator Collins, the government is well aware of the conclusion of Ms Broderick's appointment and is also grateful for her service. Of course, we will make an announcement in due course following the proper process.

Senator JACINTA COLLINS: Senator Birmingham, can you tell me if a process has commenced?

Senator Birmingham: That would really go to the deliberative discussions of government. Ultimately, the government will make an appointment and do so in accordance with the act.

Senator JACINTA COLLINS: Yes, but, Senator Birmingham, I am not asking about the content of any government considerations. I am simply asking, has a selection process commenced? And that is well within order.

Senator Birmingham: As I said, the government is well aware that Ms Broderick's term is coming to an end. At the very least the minds of government have turned, I am sure, to the matter of her departure. If officials have anything particular to add in regard to process I am sure they will do so.

Mr Sheehan : Nothing to add. It is a matter for government, Senator.

Senator JACINTA COLLINS: The question is, has a selection process commenced? That is well within order for a Senate committee, and I ask that question again.

Senator Birmingham: Senator Collins, the minds of government have turned to the fact that there is a vacancy so to that extent a selection process has commenced.

Senator JACINTA COLLINS: No, that is not a selection process, Senator Birmingham. You are trying to be a bit cute here. The question I am asking is: has a selection process commenced? If the department officers need to take that on notice, if you want to wait until Senator Brandis is here to inform us on that matter, given that you are not the direct minister involved, I am happy with that, but I continue to stress my question, which is: has a selection process commenced?

Senator Birmingham: Senator Collins, as you well know, the appointment of a commissioner is ultimately the decision of the government. If you would like officials to talk through any of the requirements under the act, they can talk through what the act may entail in that regard. If Senator Brandis has anything to add upon his return I am sure he will happily do so. Ultimately the government will make its considerations internally and ultimately announce an appointment.

Senator JACINTA COLLINS: Has a selection process commenced?

Senator Birmingham: Senator Collins, would you like to define what you think the selection process you are looking for here is? Selection processes can take many forms.

Senator JACINTA COLLINS: It will depend on what process the government has chosen to apply in this case. As I have said, if the department wants to take that on notice or if the minister wants to address it when he returns to us, that is fine. But to try to argue that a process question about whether a selection process has commenced is a matter for government and not appropriate for this committee is simply—

Senator Birmingham: I have said, Senator, insofar as the fact the government is aware of the vacancy and of course is turning its mind to the filling of that vacancy a process is obviously underway for the filling of that vacancy. If Senator Brandis has any more to add to that I will happily take it on notice and he can either contribute upon his return or provide an answer on notice.

Senator JACINTA COLLINS: Sorry, Mr Sheehan, were you going to add something?

Mr Sheehan : The department will take the question on notice, Senator.

Senator JACINTA COLLINS: I was not expecting to spend so much time on such an issue. I did want to ask about the 40th anniversary of the Racial Discrimination Act and what the commission has planned in that respect.

Ms Broderick : We are celebrating the 40th anniversary. I will ask my colleague, Dr Soutphommasane, to answer that question.

Dr Soutphommasane : Thank you for your question, Senator Collins. A number of activities have been planned and have been conducted to coincide with the 40th anniversary of the Racial Discrimination Act this year. This included a conference that we held in February which was attended by leading experts in public law, constitutional law and multiculturalism. We have an event on 11 June planned in Sydney to coincide with the date when the Racial Discrimination Act received its royal assent in 1975. Representatives from the government, the opposition, and also the Greens will be present along with other parliamentary representatives, community organisations and leaders and civil society representatives. We also have been conducting consultations in all of the states and territories asking communities for their views about the operation of the legislation and for their experiences concerning racial discrimination. That was conducted in March and April this year. Later in the year we are also planning a public lecture to coincide with the date when the legislation came into effect, namely 31 October 1975.

Senator JACINTA COLLINS: Where will that lecture be?

Dr Soutphommasane : That is yet to be determined.

Senator JACINTA COLLINS: Parliament House sounds like a good place.

Dr Soutphommasane : We would welcome the engagement of the parliament. After all, we are talking about an act of parliament and a piece of legislation which enjoyed bipartisan support when it was enacted and for the vast majority of its 40 years of operation has enjoyed such support from the parliament too.

Senator JACINTA COLLINS: Or indeed Old Parliament House might be the perfect venue.

Dr Soutphommasane : May I also add that I did not mention that the commission is also publishing a book on 40 years of the Racial Discrimination Act in association with the University of New South Wales Press. The book is called I'm Not Racist but and the subtitle is '40 years of the Racial Discrimination Act'.

Senator JACINTA COLLINS: When can we expect a report on the results of the consultations, or is that what the public lecture will seek to cover?

Dr Soutphommasane : We anticipate that we will be publishing the results of those consultations later in the year, quite possibly to coincide with that lecture in October.

Senator JACINTA COLLINS: I did not originally have questions for Commissioner Wilson, but I understand he is here so I will move to that area.

Ms Ryan : Chair, I wonder if I could seek the indulgence of the committee. Just as the discussion of the Racial Discrimination Act and its 40 years is concluding, I would like to note and draw the committee's attention to the death last week of Les Johnson MP, who was the Aboriginal affairs minister in the Whitlam government at the time of the passage of the Racial Discrimination Act. It is a relevant piece of our history and I seek your indulgence to draw that your attention.

CHAIR: Thank you very much, Commissioner.

Senator JACINTA COLLINS: Mr Wilson, your appearance today brought me to reflect on comments that you made around the debate of The Forgotten Children report, where I think it was characterised in the press after a speech at the Press Club that you had given a spirited defence to Prof Triggs, so I thank you for that. It leads me to ask about the nature of your role, given reporting around issues overseas in relation to LGBTI within about the last week. I am curious and I looked at your speech in relation The Forgotten Children report. You had assisted, I think, in the collection of evidence—if that is a fair description—and you were reminding people to have a closer look at the report and its recommendations and the role that the Human Rights Commission plays. I think you made an observation at one stage which was that the only way for the Human Rights Commission to tackle any contentious issues was to continue to defend itself and the work it does to further the standing of human rights.

CHAIR: Do you have a question?

Senator JACINTA COLLINS: Yes, I am providing the context for that question.

CHAIR: We do have limited time.

Senator JACINTA COLLINS: You described in part your role in the children in detention report. You have been reported in terms of activities in the LGBTI area. I am just wondering whether you can describe for us whether the role you are playing at the moment is bit like a roving brief across a range of different areas or if you are currently focusing on some specific areas—so we can have an understanding about how your role is working within the commission?

CHAIR: Before you answer that: just to clarify that Mr Wilson was, in fact, requested to appear by this committee on this occasion.

Senator JACINTA COLLINS: I was not suggesting otherwise. I said I did not make the request.

CHAIR: Okay. Mr Wilson.

Mr Wilson : Under the Australian Human Rights Commission Act there is a specific office called the Australian Human Rights Commissioner. There is not much in terms of detail about the nature of the role. But obviously it is a very broad brief, and every commissioner who is appointed to this role goes through a process of establishing the issues that may sit within their brief and how they seek to prosecute them.

The way I have gone about doing that is to, throughout the second half of last year, run a national consultation—in fact, two national consultations—looking at the human rights issues that exist across Australia. The key points or themes that I will be focusing on in my office were addressed in that National Press Club speech, particularly around how we advance issues around property rights, particularly for Aboriginal Australians. And I am sure you will have seen significant press coverage about our very significant meeting in Broome last week on that issue. Later in the second half of this year, we will be—

Senator JACINTA COLLINS: The Attorney was there, wasn't he?

Mr Wilson : The Attorney-General was there on the second day of the meeting. The first day he was not present—or at least not at the actual formal meeting. Later this year, we will be conducting a religious freedom roundtable to talk about the importance of religious freedom in 21st century Australia; a constructive, robust and respectful discussion amongst religious communities about what religious freedom means, and how it can be advanced in terms of policy, culture and law. We are in the process of developing that discussion at the moment.

As you would be aware, under the act there are positions for the Race Discrimination Commissioner, the Sex Discrimination Commissioner, the Age Discrimination Commissioner, the Children's Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the President of the Human Rights Commission and the Human Rights Commissioner. There is not a position that has in its brief issues related to sexual orientation, gender identity or intersex status issues. When you think about the broad structure of government, there is not ordinarily a minister, government agency or commissioner responsible for these areas of work. Under the principle of equality before the law, a fundamental human rights principle, I take on a de facto role in that space to make sure those issues are addressed and do not fall through the cracks of government policy.

We will be releasing a report very shortly on the consultations we ran on that in the second half of last year. It raises lots of issues in law, but also outside of law, around making sure there is respect for people regardless of their sexual orientation and gender identity. In spaces like health care, for example, it is about making sure people do not face unjust discrimination but also making sure that healthcare professionals are properly educated and qualified to be able to assist people. To give an example, in aged care it is about fulfilling the provisions under the Sex Discrimination Act, and that people should not be discriminated against on the basis of their sexual orientation, gender identity or intersex status. It is about making sure people get the proper quality of care but also making sure that they are treated equally and respectfully by government or agents acting on behalf of government provision of public services.

Senator JACINTA COLLINS: Yes, you are correct to highlight the reforms that occurred in relation to access to aged care. I wonder—since you mention that it is in a sense a de facto role with respect to LGBTI issues—if you have a view on whether in Australia at this stage in relation to human rights matters we should do more than continue this area on a de facto basis?

Mr Wilson : I do not have a firm view on this. I think it is a perfect area in which the Human Rights Commissioner can do important work. The Human Rights Commissioner of course, and the office, has to come from the perspective of ensuring that people are treated equally before the law and government. That is all that I am seeking to do in this role. I am seeking to make sure that every Australian, regardless of who they are or their sexual orientation, gender identity or intersex status, is afforded basic equal respect before the law. I think that is a position which the public—and the parliament no doubt—will support, because what we are putting forward are very pragmatic policy responses and solutions to issues that affect people on a day-to-day basis and can have very powerful impact in terms of preserving and protecting individuality and dignity in the full participation of public life.

CHAIR: Thank you. We might just move on, Senator Collins. We can come back to you later. Senator O'Sullivan.

Senator O'SULLIVAN: Thank you. Welcome, Professor Triggs, Mr Wilson, Ms Ryan. I have received reports that the commission hosted a very successful event in northern Australia recently in relation to Indigenous property rights. There have been a lot of very positive comments made about your contribution and the contribution of Commissioner Gooda. Is there any possibility that you might just be able to—I understand that it was referred to as the 'Indigenous leaders roundtable on property rights—expand on that for the committee.

Mr Wilson : This directly goes to a follow-through from Senator Collins' questions with relation to consultations that we ran last year. Throughout the year, working with Commissioner Gooda, it became very evident that there were significant legal, regulatory and policy restrictions that undermined the capacity for Aboriginal Australians to use their different forms of title to advance economic development and the development of housing. We heard these stories from across the country and the need from Aboriginal communities to increase their capacity to flexibly use their land to meet their aspirations and achieve self-determination. Commissioner Gooda and I organised a meeting in Broome last week which was held over two days.

The first day essentially gave the opportunity for Indigenous leaders to come along to raise the issues that they thought were important in terms of restricting the free use of their property rights under different forms of title. The second day was dedicated towards focusing on how we may address these issues.

I am very pleased to say that we went into this process thinking that we might be able to get 15 or 20 people in the room to talk about these important issues. Instead, we got an incredible response from Australia's Aboriginal and Torres Strait Islander leadership where, in the end, we had nearly 60 leaders turn up at different points throughout the two days to talk about these important issues.

I can report that it was an incredibly lively, robust and respectful conversation amongst Australia's Aboriginal and Torres Strait Islander leadership about the potential that sits in different forms of title and its capacity to contribute to discussion around achieving self-determination, economic development and housing for Aboriginal and Torres Strait Islander people. Also, there was an incredible amount of, I think you would have to say, goodwill around the need to work on these issues cooperatively.

Out of the meeting, there was a general consensus from those present that Commissioner Gooda and I should go away and do further work and that the Commonwealth should resource the commission appropriately to focus on these issues to really promote the discussion that they had. There was a communique that was produced out of the discussion and talked particularly about five basic principles, which if you do not mind I will read out, about where they would like to see the discussion go.

The first is around fungibility and native title, in particular, enabling communities to build on the underlying communal title to create opportunities for economic development. The second was around business development support and succession planning about ensuring that Aboriginal and Torres Strait Islander peoples have the governance and risk management skills to successfully engage in business and management of the assets. The third point was financing economic development within the Indigenous estate around developing financial products such as bonds to underwrite economic development for engaging the financial services sector and organisations, including land councils and Indigenous Business Australia. The fourth was compensation related to rectifying the existing unfair processes for compensation for extinguishment of native title and considering how addressing unfinished business could leverage economic development opportunities. The fifth and final point was promoting Indigenous peoples' right to development—promoting opportunities for development on Indigenous land including identifying options to provide greater access to resources on the Indigenous estate.

Those are very clear objectives from this meeting that they have asked that Commissioner Gooda and I now go off and pursue. We have not finalised a strategy about how we are going to seek to do so, though there has been discussion about the need to establish different working groups that bring together experts and skills to develop proposals or policies for reform to address those different points. In particular, it is to reach out to some academics who have experience in different issues around land use and how that can be achieved while preserving and protecting the inalienable rights and title that sits under native title. Also to extend a handout to the finance sector to talk about how we can cooperate with them to make sure that financial products can be designed to work with different forms of title, so that Aboriginal communities can develop their assets and develop their potential, and to really set the opportunities for Aboriginal communities to realise their self-determination.

As Noel Pearson was quoted in the newspaper last week, the discussion around issues of native title has moved from a discussion around securing title, which has not occurred everywhere but has certainly occurred in many places. The discussion now is to shift towards land use, and how it can be used to advance the issues of Aboriginal Australia and Torres Strait Islander peoples. That is where our focus is.

I think the meeting was a watershed moment in terms of discussion around Indigenous issues. It was also particularly an issue an opportunity, for the first time I understand in a long time, for Aboriginal and Torres Strait Island leaders to meet in one place and talk about these issues. It was also very constructive from my perspective shift in terms of a positive discussion about how to improve the health, welfare and economic outcomes for Aboriginal and Torres Strait Islander people.

I want to pay particular regard to Commissioner Mick Gooda and his outstanding work in the meeting and facilitating discussion—if you will indulge me—also the staff at the Australian Human Rights Commission, including Louise Bygrave, Kirsten Gray, Padma Raman and Darren Dick, who all made incredibly important contributions to, not just organising the meeting, but its incredible success. I am very optimistic about where this discussion is going to head in the best interests of Aboriginal and Torres Strait Islander peoples, but also the potential to contribute to all Australians.

Senator O'SULLIVAN: Thank you for that comprehensive answer, and that is consistent with the feed-in that I have been given with the work of yourself and Mr Gooda. Can I just take you back a bit and ask you a really layman's question in terms of the title. You have indicated, if I have understood you correctly, that there are different types of title. The word title conjures up a common law understanding, but are you suggesting that some of the title has with it covenants or caveats on it when it is given? Welcome, Commissioner Gooda.

Mr Wilson : Commissioner Gooda, do you want to make a contribution to that, or do you want me to?

Mr Gooda : I will start, if I can be indulged. That was really the purpose of the meeting to get to the point of different land tenure systems right across Australia, from the Aboriginal Land Rights Act in the Northern Territory to the Aboriginal Land Council Acts in New South Wales. You are right, there are absolutely different types of conditions on different types of title.

Senator O'SULLIVAN: So, title is not in dispute, it is the conditions of title, in effect.

Mr Gooda : The Northern Territory Land Rights Act has 'inalienable freehold title', where it is really hard to get to using that asset to raise money. That is why Commissioner Wilson raised the fundability issues that come out of that.

Senator O'SULLIVAN: For example, Mr Gooda, they are prohibited perhaps, or restricted in being able to put it forward as a security to raise money?

Mr Gooda : Yes, absolutely.

Senator O'SULLIVAN: And the thinking behind that? I would like someone to come and roll into my place and lay that caveat on my circumstances. I would have an opinion, I expect.

Mr Gooda : I am sure you would, as we do. That is one of the reasons that, during Commissioner Wilson's consultations, this issue came up time and time again. The meeting last week with really moved from that. We never heard the word 'welfare' up there, it was all about economic development. How we can use the assets Aboriginal and Torres Strait Islander people have, in what we they call now the 'Indigenous estate'. In the Northern Territory about 54 per cent of the land mass and about 24 per cent of the land mass in Australia have Aboriginal interests in. How can we leverage those interests to better our situation?

Senator O'SULLIVAN: Quite apart from what might be able to happen at a Commonwealth level, are you finding challenges? I know that in my home state of Queensland—and we will not get caught up in Wild Rivers and all sorts of other large tracts of land where state development made decisions that clearly impede landowners' capacity for economic development. How do you propose to challenge it from the state level? It is one thing to get the Commonwealth to consider where they play a part. Is there some way we are going to harmonise an effective solution here without having to go door-to-door around the states and starting all over again?

Mr Gooda : Late last year the ministers responsible for native title across the country came together. They have formed a working group of officers that will look at this from right across each of the jurisdictions. That process is happening already. There is an expert working group of Indigenous people who are well versed in these issues working on it as well. What we want to do now is, as the outcome of last week, start to put together a proposal to take it forward. We want to talk to both Senator Brandis and Senator Scullion about maybe running one process where we can address all of these issues rather than having an Indigenous one running and the working group out of the native title ministers running another COAG process. Discussions have been underway about how we can join those together so we can address these issues all at one time, basically. We are fortunate that there is a process already going.

Mr Wilson : May I add to that? Throughout the consultation, some of the feedback we received was from the states themselves, that they wanted to see opportunities for Aboriginal communities to use their land. Obviously, there have been reforms in the state of Queensland over the past few years, and, while they may not be the model that everybody wishes to see, there was a very live and open discussion, which is precisely why it has come up through COAG with the opportunity of a working group to feed that in.

We have not come to conclusions yet. We went through the process of establishing whether there was sufficient interest to progress this from Aboriginal and Torres Strait Islander leaders. I think we can say very confidently that there was and that some of it may relate to the operations of title at a state level and a Commonwealth level, but a lot of it is outside of the law, particularly in relation to finance, which is seen as one of the great stumbling blocks around the management of risk and how you manage or marry communal title with different financial products. That will obviously be done in part of the discussion around the use of land, but it also needs to be done outside of the law. It is really about bringing those parties together and finding a very constructive dialogue to solve that.

Senator O'SULLIVAN: I have a related question for Commissioner Gooda. I recently had some time on Mornington Island and I have to say: shame on every government. I do not care who it has been for the last 50 years, in relation to the circumstances on Mornington Island. We had discussions about exactly this principle, about developing industry on Mornington. There are two mobs who share, I suppose, ownership of Mornington Island and there was some suggestion that sometimes they can have some difficulties within the Aboriginal and Islander community themselves in reaching a consensus about what ought to happen. Would you agree that somehow we have got to deal downwards as well as sideways in relation to getting systems in place or at least cultures in place to be able to do with that challenge?

Mr Gooda : Absolutely, and that is what the discussion turned to in Broome last week: how do we actually build community governance systems in place so they can make those decisions? We will be guided by things like the UN Declaration on the Rights of Indigenous Peoples—things like the right to participate in decisions that affect you and the concept of free prior and informed consent, which is going to be really important if people are going to put their land at some risk, which you always do if you are raising capital. Are they fully aware of those risks and do the risks outweigh the potential benefits that can come from entering into economic development? In my report in 2012, I wrote about a concept of lateral violence and how do we actually work it through a community to get those views that you are talking about. How do we resolve those? If there are two mobs on Mornington, how do we actually bring people together so they can make a common decision?

Senator O'SULLIVAN: My time is up, but let me say I think history will be very kind to you both and to the commission for taking on this very challenging issue. It is about time.

Mr Gooda : Commissioner Wilson and I basically plan to have a paper published out of this. It was totally unexpected that the leadership unanimously expressed, not only to the meeting but to Senator Brandis when he came, the full confidence they had in the Australian Human Rights Commission, particularly Commissioner Wilson and me, to take this forward—unexpected, unsolicited, and I have got to say I was pretty chuffed about that.

Senator O'SULLIVAN: If you need a door-kicker down here, I am happy to offer my services.

Mr Gooda : Thank you.

Senator COLLINS : I would like to return to my questions to Commissioner Wilson. I was interested in going back to the role you described in the Press Club speech about your participation in the Forgotten Children report. I get the impression from that speech that you are working across a range of different areas, and I would be interested to understand how that is occurring.

Mr Wilson : Thank you for the question. I am not 100 per cent sure what more I can add in addition to the contribution I have made already. When I arrived at the commission, there was a discussion between the president of the commission and me around the policy nature of human rights, and there has been a sort of broad agreement, at least from my perspective, that the president would focus on asylum seeker issues and that I would not take that in within my portfolio. But I did express an explicit interest in at least visiting detention centres and getting an assessment of the experience of asylum seekers and their experiences in detention, so I did go, as part of the inquiry, to the Wickham Point detention centre—and the name of the other detention centre in Darwin escapes me, but I went to both detention centres—and interviewed with families, least because I of course often get asked questions in public and need to be able to make a fair assessment about what is occurring in mainland detention centres.

But I am working across a broad brief, because the Human Rights Commissioner's portfolio is a broad brief. It is, I would suggest—apart from perhaps the policy roles the president may take an interest in—the broadest brief at the commission, because, if you look at the ICCPR or other international treaties, there are a very large number of issues. The key things I have said I will focus on are around freedom of speech, and no doubt people have noticed that I have continued to contribute in that area of discussion around religious freedom, around discussions on property rights and should issues arise in areas like freedom of association and other areas. My primary interest at the moment is to focus on core programs in equality before the law and equal treatment by government for LGBTI Australians around property rights issues and what impact it has on Aboriginal and Torres Strait Islander peoples. I have flagged an interest in looking at the broad issues of property rights and housing affordability, but I have not had the chance to focus on that yet, because we have many other things going on, as well as the issues around religious freedom and of course religious freedom and the interaction between some of the policy areas in the LGBTI space, which have a material effect on both human rights areas.

Senator COLLINS : You mentioned your role as Freedom Commissioner. That is essentially a de facto type role too, is it, or is there some formal—

Mr Wilson : If you go and look at the pre-election policy statements of the current government, they said that they would establish the office of a Freedom Commissioner. My understanding is that they appointed me as Australia's Human Rights Commissioner and that is probably more of a branding exercise on the part of the government. But I think it would be fair to say that I am very focused on the rights of the individual to freely pursue their lives and that, against the backdrop of the other officers within the commission around antidiscrimination and social justice issues, it is important that the Human Rights Commissioner does have a focus on advancing individual human rights and freedoms and the free exercise of human rights, and that is primarily how I am going about the role, in answer to your question.

Senator COLLINS : What is the history of the Human Rights Commissioner?

Mr Wilson : The position, if I am not mistaken, was established in 1986. I am the sixth person to have held the office. Prior to my appointment, I understand the position was effectively left vacant for two years. Prior to that it was held by the president, Cathy Branson, as well as being president of the commission. Prior to that, my understanding is that it was held by the Disability Discrimination Commissioner in a joint role. Prior to that, my understanding is it was held as a role in its singular capacity.

There have been different people who have been focused on different issues, ranging from running enquiries into children detention by Sev Ozdowski, the commissioner in the early 2000s, to Graeme Innes who was focused on issues around equal treatment of people through disability to issues around regional education by former commissioner Chris Sidoti. It is a very broad brief, and the practical reality is each person will turn it into the issues that they see and identify.

From my experience, the office has no real statutory power except for those delegated occasionally under the act. So you have to go and involve yourself in identifying where there are issues within the community, parties that you can work with, things of course which are of interest to you, and make sure that every day you turn up to work as enthusiastic and excited as I am—

Senator JACINTA COLLINS: Oh, please!

Mr Wilson : about the opportunity to address human rights issues—

Senator O'SULLIVAN: Clearly evident!

Mr Wilson : And of course, also, what is in line broadly with the political discussion or the government discussion so that you can advance reform.

Senator JACINTA COLLINS: Senator O'Sullivan, some people survive on red cordial; I am not one of those. Correct me if I understood wrongly what you said earlier, but the current government had a pre-election commitment to establishing a freedom commissioner and you are not expecting another commission position to be established but rather that has been represented by them filling the Human Rights Commissioner position.

Mr Wilson : That is my understanding, but anything more on that would be a question for the government, not for me.'

Senator JACINTA COLLINS: Sure. But in any sense, no new commission position has been created to date.

Mr Wilson : Correct. It is an existing position.

Senator Birmingham: I think, Senator Collins, and it is my recollection that upon Mr Wilson's appointment, the Attorney-General did dub him the 'Freedom Commissioner'. But, as Mr Wilson has eloquently explained, the role of the Human Rights Commissioner in upholding the International Covenant on Civil and Political Rights has the potential to be quite broad in terms of its contribution to policy discussions in Australia. The ICCPR indeed touches very much on the freedoms that Australians and peoples around the world should enjoy.

Senator JACINTA COLLINS: LGBTI activities, domestically—could you talk to that point, please?

Mr Wilson : Certainly, Senator Collins. As I am sure you are aware, there has been a very lively discussion in the past 48 hours following on from the referendum in Ireland around the issue of marriage and whether same-sex couples should be afforded that right to marriage. The commission has made statements prior to my arrival, but my very view very strongly is that the basic human rights principle of equality before the law means that same-sex couples should be granted equal respect before the law and should be able to marry, and the law should change. There are many ways you can achieve that. You can achieve that by removing the government's involvement in marriage or you can do it by changing the existing law. I have no doubt those debates will happen in a short while.

Once you get past the headline issue of marriage, which attracts the most attention, there are enormous challenges in other areas of policy that affect LGBTI people. Some of it is in the area of state law with relation to surrogacy and adoption, and those sorts of issues. There are also a lot of non-legal challenges we face, particularly around making sure that health practitioners are properly educated to assist people who may be gay, lesbian, bisexual, transgender or intersex to make sure that their specific needs can be met. To give you an example of that, this occurs regularly in the mental health space, where there are very few practitioners who have the educational skills to properly aid and assist somebody who presents with gender dysphoria and challenges around their gender so that they can work with mental health practitioners to address their issues and then address pathways forward about how they may live a safe, secure, and prosperous life. Similar issues, of course, operate in other areas of medicine, but mental health to us has stood out as one of the strongest ones. I still remember meeting with people who work in the mental health space in some of Australia's regional and remote communities and talking about the challenges that they face in this area.

Equally—when it comes to the intersectionality between issues around sexual orientation or gender identity and other issues around racism, as an example—there are issues around making sure that teachers are properly educated to assist and aid children who may be having challenges with their gender or sexual orientation in school, and making sure that those teachers get the proper support and assistance that they need to make to make sure that those kids can be safe and have opportunities to prosper, contribute and learn in their school environment.

There are many other issues. We are about to release quite a substantial report looking specifically at these issues, which I am more than happy to provide. But I am concerned that if I keep going on, I am going to undermine the release of the report and the contribution that it is going to make to public debate. So I am happy to answer any other questions, but those are the broad themes that come out of the work that we have been doing. I will also add one more around violence and the rates of violence experienced, particularly by transgender people in the Australian community. From the data that we are aware of and that is publicly available, those rates are unacceptably high. There needs to be a clarity about what the rates of violence are and then perhaps strategies to deal with that. But we need to get to the bottom of the problem that is faced.

Senator JACINTA COLLINS: I am fairly familiar with many of those issues. I was more interested in commission activities, so to speak. You have mentioned the report. I do not want you to pre-empt that report. You mentioned that you have been collecting—or I do not know if you yourself directly have been collecting—but you have been looking at data about violence.

Mr Wilson : Yes.

Senator JACINTA COLLINS: It might be bit more helpful if you stay on 'These are the activities that the commission has been engaged with,' rather than 'These are the issues that affect LGBTI people'.

Mr Wilson : The key thing that we have been doing is through the consultations in the second half of last year, which we ran parallel to our consultations on human rights to make sure that we got best value for the taxpayer buck.

Senator JACINTA COLLINS: What were they called?

Mr Wilson : That was called the Rights and responsibilities consultation. We released a report in March of this year. My understanding is we have sent a copy to all, but we are happy to send another copy. It goes through the issues that were raised. Parallel to that, we ran a consultation on issues in the sexual orientation, gender identity and intersex space. The report will come out shortly. It will address specifically the issues that came out of that consultation and then map out our pathways forward. In addition to that—and perhaps this is where you are alluding. Earlier this year I was asked to travel to Thailand as part of—

Senator JACINTA COLLINS: No. I have been asking about your domestic activities.

Mr Wilson : Domestic activities only?

Senator JACINTA COLLINS: I am giving you the opportunity to talk about your domestic rather than your international engagements.

Mr Wilson : Sure. The report is a primary focus. There are, of course, meetings that I have had along the way with different parties, which have fed into the process. But that is the substantive focus of my domestic work in this space.

Prof. Triggs : I wonder if I could just add one element to this. The commission has been working in this area for some time, and we were particularly concerned to raise the amendments to the Sex Discrimination Act, which concerned sexual orientation, because the business community was often not aware of those changes. So we have conducted training—particularly with human resources departments of small to medium and larger companies—on exactly what that legislation meant as part of a general educative program across Australia. We would like to continue to do that, because, as I think I have remarked in other Senate estimates, most of our complaints in relation to human rights breaches and anti-discrimination law arise in the context of business or delivery of goods and services.

Mr Wilson : May I add one other point which the president's contribution has reminded me of. We are also working very explicitly with Australia's elite sporting codes around tackling the issues of homophobia and other types of stigma in sport. We worked directly with the Bingham Cup in 2014, which is an international gay rugby tournament, to address those issues and the development of a code of behaviour that has been adopted by many of Australia's elite sporting organisations to tackle those issues of stigma and prejudice.

Going forward, we are working with Pride and Diversity, which is a pro-business civil society body that assists organisations in tackling issues around prejudice and stigma towards lesbian, gay, bisexual, transgender and intersex people. They are developing an index that the sporting codes have signed up to to share information and to assess their performance in improving and tackling these issues on the sporting field. But, of course, the hope is that it will establish standards that will normalise civil conduct around these issues in the rest of the population as well.

Senator JACINTA COLLINS: Perhaps as an example of your fairly broad brief, I will move to the copyright law area.

Mr Wilson : Which we have spoken about previously.

CHAIR: You have only got 18 seconds.

Senator JACINTA COLLINS: Yes. I have 18 seconds, so I might wait until my next turn.

Proceedings suspended from 10:30 to 10:46

CHAIR: Welcome back. I want Dr Soutphommasane to come to the table please. It is a matter about which I have corresponded with him. There are two issues—

Prof Triggs : He is very close by. I apologise.

Senator JACINTA COLLINS: I think he has been waylaid by Senator O'Sullivan.

CHAIR: I will go backwards then. I will raise the other issue with the age commissioner. A constituent has raised with me an issue in their workplace. They are a person who is over 65, and for every year that person remains in their job they, under the rules of this workplace, lose something in the order of $40,000 in cash off their superannuation. Is that the sort of thing that the age commissioner would be interested in having a look at?

Ms Ryan : I am horrified to hear this. I would be very interested if you could pass on the representations so that we could look into it. I cannot think that how could be happening legally on the face of it because superannuation contributions by employers, as you know, are a matter of law. We are very pleased that in recent years we have been able to get the obligation to pay the superannuation guarantee to continue while ever a person is working. On the face of it that sounds like a most shocking thing and I would be very happy to investigate that.

CHAIR: It is a matter that has been raised with me by a constituent. I will have a chat to you and the constituent about the issue later, but I just wanted to see whether that was the sort of thing—

Ms Ryan : It is the sort of thing because it sounds like, on the face of it, unlawful age discrimination, but we have to look at the detail. I look forward to it.

CHAIR: I agree with you; it does seem to be outrageous. We will talk about some other time. Can we find the—

Prof Triggs : I do apologise.

CHAIR: That is okay.

Prof Triggs : Dr Soutphommasane has obviously moved off, but we will find him very shortly I am sure. I know he is in the building.

Senator WRIGHT: First of all, welcome to the commission and the commissioners. We do not have Ms Broderick here—is that right?

Ms Ryan : She is in the search party.

Senator WRIGHT: I might wait till she comes back then to add my congratulations to her on behalf of the Greens. I will get right down to tintacks. Professor Triggs, you are the person to ask about the funding of the Human Rights Commission? Can I get some detail about that? According to the 2015-16 budget figures, the commission's revenue from government in 2015-16 has decreased from a revised 2014 amount—I am just checking whether this is accurate, first of all—of $18.641 million to $15.515 million. If I am right, that is a decrease of $3.126 million in government revenue, or more than 16 per cent. The 2015-16 budget statement states:

This is the net result of new measures, cumulative parameter adjustments, the application of the efficiency dividend and targeted and additional one-off savings measures.

First of all, can I just clarify if my information there is accurate.

Prof Triggs : I believe that information is accurate. I will ask the executive director to add anything she would like.

Ms Raman : That information is accurate, but I can answer any further questions if you like.

Senator WRIGHT: I am interested to know what new measures and targeted savings are being referred to in this statement?

Ms Raman : We got some cuts in MYEFO at the end of last year, which amounted to $1.6 million in this financial year and $1.7 million in the next two financial years. It is a total of $5 million over three years.

Senator WRIGHT: Targeted savings are essentially targeted by the government, that is what that means?

Ms Raman : Yes.

Senator WRIGHT: How will these funding reductions be broken down by portfolio within the commission? Is it possible to answer that?

Ms Raman : The $1.6 million roughly equates to 15 staff. We are going through a process of identifying how we will absorb those cuts. As you would appreciate, it is significant in an organisation that is very lean. Essentially, it means we have to find a 10 per cent saving each year over the next three years.

Senator Birmingham: Just for clarity: I understand these savings were identified in MYEFO last year; they are not new budget measures.

Senator WRIGHT: Yes, that was already indicated in the background I gave. The commission's 2014-15 work plan included a focus on human rights education, business and human rights, and freedom from violence, harassment and bullying. What will be the focus of the commission's 2015-16 work plan?

Prof Triggs : Those are our priorities for the next couple of years. We are very conscious of the fact that most of the matters that come before us do arise in the context of business and the delivery of goods and services. What we want to do is work more proactively with the business community, to engage them in those processes. We are also working on some new ideas and new work in the area of domestic violence. The Children's Commissioner has done some very valuable work in relation to self-harm and suicide of young people and of course there is Elizabeth Broderick's work in relation to violence against women, but for the future we are looking at some other proposals. I will mention them to you or we will show you our work plan as soon as we finalise it.

Senator WRIGHT: Will there be any changes to the commission's organisational structure in 2015-16?

Prof Triggs : We do not expect any major changes to our structure, except that over the last couple of years, because all government agencies have been subject to budgetary restraints of one kind or another, we have been moving much more towards cross-commission work.

Much of our work engages more than one commissioner or more than one particular issue, and we find that we can be much more effective—quicker on our feet, in a sense—if we take a particular issue and make it a cross-commission matter agreed to in a collegiate way. Then the relevant commissioners will be involved in that particular matter. But that means that the teams within the commission support that project as a cross-commission project rather than as a siloed matter within a particular portfolio.

Senator WRIGHT: Thank you for that. Now we have Ms Broderick back, on behalf of the Greens I would like to add our congratulations for the great work you have done as a commissioner and certainly wish you well for the future. I am sure you will be doing some excellent work as well. Thank you.

Senator O'Sullivan: Hear, hear!

Senator WRIGHT: I would like to ask some questions of Mr Wilson now. You are the man of the moment today, it seems!

Mr Wilson : I did say that one of the key objectives of my job is to make sure that people are talking more about human rights and the public discourse, so I consider this a success!

Senator WRIGHT: I was paying attention to your answers to Senator Collins's questions about your consultations particularly about LGBTI issues in Australia and the report that you are compiling. I may have missed it; can you advise when the final report is likely to be released?

Mr Wilson : My best hope is that it will be released on 10 June. That is the current time line. We are just going through the final stages of formalising the report so we can meet that deadline.

Senator WRIGHT: Thank you. Can you advise whether the report will look at SOGII—I am not sure I have pronounced that right.

Mr Wilson : SOGII stands for sexual orientation, gender identity and intersex.

Senator WRIGHT: So there is a soft G there. Can you advise whether the report will look at SOGII discrimination arising from the definition of marriage in the Marriage Act?

Mr Wilson : I can confirm that that is included as part of the report.

Senator WRIGHT: I understand that the states and territories have been given an exemption under the amended Sex Discrimination Act to allow them to comply with new federal protections against discrimination on the grounds of sexual orientation, intersex status and gender identity. Am I right in understanding this exemption would end soon—at the end of June 2015?

Mr Wilson : The original end was at the end of June last year. The Commonwealth gave states an extension of 12 months to the end of this year. It would be a question for the government to ask whether there will be a further extension or whether there will be some other measure put in after 30 June.

Senator WRIGHT: In your view, should a further exemption be granted?

Mr Wilson : From the discussions that I have had and the evidence that I have seen, the states are not in a position to meet that deadline in terms of reform of their own laws. I believe that some of these issues should not be controversial but may be controversial amongst some quarters and that it may be best for states to work constructively in their own time to address these issues, but I think the Commonwealth needs to set a deadline that is a firm deadline to make sure that the states see the impetus to reform their laws and have this discussion. I understand there has been some work done by the states and that, should there be an extension of another 12 months, it would probably fulfil most of our aspirations in terms of reform of laws.

Senator WRIGHT: Thank you. I would like to turn now to the way you see your role as freedom commissioner in relation to legislation that is passed by Australian governments that has implication for freedoms both traditional and in common law and under international conventions. Really it is about understanding your view about your role. To what extent do you think it is your role to comment and/or participate in the public debate around legislation?

Mr Wilson : I see it as central to my role as I outlined in the answers to questions from Senator Collins. The scope and breadth of the role of human rights commissioner is quite broad. As you are well aware and as other senators will be aware, I have made a number of public comments with relation to legislation, but I couch it in the context that there are an enormous number of issues that fit within the purview of my office, because essentially anything that effects humans can have a human rights effect, and there are only so many issues I can focus on at one time, particularly when it comes to issues of legal technicality. But, where I can and where I am asked to contribute to debate, I do. Where I can see opportunities not just to talk about the issue at hand but to enhance and improve the discussion around human rights generally, I seek to do so.

Senator WRIGHT: Certainly, if we talk about branding, one of the areas you have been outspoken on and I think would like to be seen as is as freedom commissioner, so that is particularly the area I am asking you about. I will give you a particular example of legislation. I have been carrying these questions around for a while now because for various reasons it has been difficult to get an opportunity in this committee to get to some of the nitty-gritty in relation to the Human Rights Commission. The example I will give is the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. It was a bill when I was going to ask you about it first, but it is now an act. As the freedom commissioner, what is your view as to how that act, for instance, aligns with the freedoms of Australians?

Mr Wilson : Of course I am sure that, like you and the other senators in this committee, I share the common aspiration that people do not go and fight in foreign conflicts and put their own lives at risk as well as seeking to harm others.

Senator WRIGHT: Absolutely.

Mr Wilson : The legitimacy of what the government did in terms of aspiration on its face I have no fundamental issue with, but I would say that it is a direct limitation on freedom of movement into declared areas declared by the Minister for Foreign Affairs. I understand there have been a number of those declarations since the act has received assent. The scope of the exemptions under which you can be permitted to go into those—

Senator O'Sullivan: I am sorry to interrupt, but I have a point of order for the chair. Your question deliberately solicits an expression of opinion from the witness, and I think it is not a useful space to have witnesses expressing opinions—positive or otherwise—in relation to decision taken by the parliament or the government.

CHAIR: It is against standing orders, and Senator Wright knows it, so perhaps she could rephrase the question—

Senator WRIGHT: Could I respond to that point of order with a point of order of my own of it is necessary to make a point of order.

CHAIR: Speak to Senator O'Sullivan's.

Senator WRIGHT: I will speak to it. This comes to the fundamental issue about what the role of the Human Rights Commission is if it is not to comment and participate in the public debate. I have just asked Mr Wilson about the role as he sees it, and he said it is to comment, to participate. He has written on this issue in the media.

Senator O'SULLIVAN: Not in estimates.

Senator Birmingham: That indeed is relevant to the role of the commission. The role of Senate estimates is generally for the exploration of matters of fact rather than opinion. Of course, in exploring the bill that you are talking about that is now an act, at the time it was a bill and underwent scrutiny, it would have been perfectly right and proper to invite Commissioner Wilson to attend a Senate hearing to give evidence, whereupon the giving of his opinion would have been an appropriate thing for that exploration of the legislation. There would be other opportunities, I am sure, to seek opinion in this fora where we are exploring the role of the commission. You can absolutely question Commissioner Wilson or anybody else about, perhaps, how he gave his opinion in relation to those pieces of legislation—to give you a suggestion. As to simply using this to explore opinions of all of the witnesses: that is not really the fundamental essence of what the Senate estimates process is about.

Senator WRIGHT: I do not understand the distinction between proposed legislation and legislation that has been passed. It seems to me—

Senator Birmingham: That is irrelevant.

Senator WRIGHT: It is not.

Senator Birmingham: The distinction between—

CHAIR: Hang on. There is a point of order raised. Senator Wright, as you well know, asking opinions of officers is not allowed by the Senate rules.

Senator WRIGHT: I am being guided by the Senate—

CHAIR: Please show some manners. I am ruling on the point of order raised. I do not expect to be interrupted by you or anyone else while I am doing that. The point of order is being raised, and I am saying you and we all know you cannot ask for expressions of opinions from officers. If you would like to rephrase the question, perhaps you might be able to work out a way to get out the answer in a different way. I will listen intently, which unfortunately I was not doing before.

Senator WRIGHT: Mr Wilson, you wrote about the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill before it was passed by the parliament. I believe you wrote an article in The Australian, I think it was.

Mr Wilson : I would have to go back and check my records, but I think that is highly likely.

Senator WRIGHT: I can give you the reference to it.

CHAIR: We will take that as a yes.

Senator WRIGHT: At that point, did you make a comment that the effect of the legislation if passed would affect freedoms including freedom of movement, freedom of speech—because there is an advocating terrorism aspect—and freedom of association?

Mr Wilson : I would suspect I did write that, yes, but I would have to review the article. I think the answer is yes.

Senator WRIGHT: Okay. I feel that this actually gags you. I think it is unfair to put you in this position, actually, but anyway.

Mr Wilson : I am tempted to look up the article so that I can give you confirmed answers.

Senator WRIGHT: I am happy to do that.

CHAIR: My advice to you is, when you get a comment by the Greens on what people said, they are very rarely accurate.

Senator JACINTA COLLINS: Remember you are the chair.

Senator WRIGHT: That is the usual kind of impartial chairing that we have come to expect in this committee. It is good to hear that you are in form, Senator Macdonald.

CHAIR: You have a minute. Do you have a question?

Senator WRIGHT: I am waiting for Mr Wilson to look up the article. I think it is courteous to allow him to do that.

Senator Birmingham: Is there a date for the article in question? That might help.

Mr Wilson : I am googling it as fast as I can.

Senator WRIGHT: It was The Australian, and the line is 'even in pursuit of valid goals, let's stop sacrificing principles and rights.'

Mr Wilson : My understanding was the primary focus of that article was around issues of freedom of speech, but I may be—no, sorry. It was related to the broad suite of terrorism measures.

Senator WRIGHT: As I said, I would have liked to have been able to ask these before the legislation was passed, and it was not my doing that that was not the case.

CHAIR: Do you have a question?

Senator JACINTA COLLINS: She is waiting for Google.

Senator O'SULLIVAN: You did not attend the legislation committees that examined it? Busy that day?

Senator WRIGHT: I have asked the commissioner. This is estimates, and I am asking the witness a question.

Mr Wilson : Perhaps you could ask the question. Even if I cannot give you a definitive answer, I can give you the spirit.

Senator WRIGHT: In that article that you wrote, did you express concerns about the implications of the proposed legislation on freedom of speech, freedom of movement and freedom of association?

Mr Wilson : I certainly think that would be the case, because there was in those pieces of legislation some restriction on fundamental freedoms. But, as you would understand, it is not as though you cannot restrict fundamental freedoms; it just needs to be proportionate, done on the basis of law. Considering the nature of the issues that are being addressed—which are quite substantive and, I think we need to acknowledge as well, new, or the extent of the problem is a comparatively new issue—we need to be mindful when we seek to use legislation that it is pursuing a legitimate goal but also does not disproportionately limit fundamental freedoms.

Senator WRIGHT: In relation to the declared zones offences in that legislation, did you comment in that article that the defences for this offence are too narrow, that there were concerns that legitimate behaviour could be criminalised by the offence?

Mr Wilson : That sounds like me.

Senator WRIGHT: Does it? Good. I am glad I am not wrong on that. Thank you.

CHAIR: Thank you, Senator Wright. Your question time has finished. We can come back to that; but, rather than asking the commissioner questions you have the answer to, perhaps it would have been easier to table the article if you had it in front of you. It would have saved some of your time.

Senator O'SULLIVAN: Busy ignoring you, Chair.

CHAIR: That is okay; I have come to expect that. It does not worry me at all.

I will go back to Dr Soutphommasane. I raised these issues with you to give you notice before the last estimates about a complaint made to me by a constituent—well, it is actually not a constituent. It is someone who wrote to me in my capacity as chairman of this committee, complaining that he had on several occasions written to you, asking for a comment on an article you had written. Before going into the substantive part of the complaint made to me by this citizen of Australia, could I hear from you or perhaps the president what the commission's role is when individual Australian citizens write to commissioners, in this case on three or four occasions? I have the whole brief here. I think he has written on three or four occasions to you asking for a comment, and all he had in response was something from a Ms Ellinson saying that she was happy to discuss the matter with the constituent. What is the commission's rules on Australian citizens writing to commissioners and expecting a reply? Is it incumbent upon the commissioner to reply, or is there some internal ruling on that?

Dr Soutphommasane : I apologise for having momentarily departed the committee room, so I beg your forgiveness for my absence earlier. It is my general practice to do my very best to respond to citizens and residents who do communicate with me or my office. In the case that you are referring to, my office did respond to him on two occasions. My office offered to speak to him on the phone to discuss the matter that he had raised. To put it in specific terms, I was asked to respond to a piece of commentary about a piece of commentary I had written myself, and I believed that it was useful to get more clarification of what the query was exactly. My office has responded on two occasions to this person, and our offer to discuss the matter with him on the phone was rebuffed.

CHAIR: I only have one, which he sent me, which is from Ms Katie Ellinson, adviser to the Race Discrimination Commissioner, dated 16 January, in which she says that she is 'happy to discuss the matter with you'. The question raised by the complainant goes back to late last year, 8 October I think, when he first wrote to you asking for a comment. You again wrote on 24 November and on 5 January. There was a response on 16 January, which is the letter to which I refer, which was really nothing. There was another letter to you of 26 January, and then, in frustration, a letter to me on the same date. In February I alerted you to the fact that I would be raising this matter at estimates and that you should come prepared. In his initial letter I thought he made quite clear what he wanted you to talk about. Is there some reason why you have not been able to respond to him?

Dr Soutphommasane : We have responded to him. My adviser responded to him on my behalf. The policy that I take to responding to communications is to make every effort to address the concern. However, it is not always going to be possible for me to respond in the way demanded by every person who gets in touch. I am sure you would appreciate that in light of the responsibilities we have. In response to our communication of 16 January offering to discuss the matter, and, as I explained to you in my previous answer, that was to get more information on exactly what kind of response was asked from me, the response I got from this member of the public was:

The sole letter to me left a little to be desired. In particular, as far as the invitation to discuss the matter of interest to me with her—

that is my adviser—

I do not propose to take it up. It would only lead to some kind of contretemps of the he-said-she-said kind when what I want is your formal response in writing to Mr Henderson's article. Ms Ellinson was also kind enough to provide her telephone number as if I was going to bear the expense of calling your adviser. You must be joking.

In response to that letter of the 26th we reiterated our offer to discuss the matter further with this member of the public—that invitation was not taken up.

CHAIR: It is the last letter that I have not seen because this was going to be raised at the February estimates and that seems to have happened since that time. The complainant's original letter to you was quite succinct and I thought it was clearly understood. He said he attached a copy of an article by Mr Gerard Henderson published in The Weekend Australian on 4 October. Mr Henderson appears to take issue with aspects of the article by you published in The Age and that he would appreciate your comments on the particulars of the attached article. He later wrote on 24 November saying that he wrote to you on 8 October seeking your comments on Gerard Henderson's article, he not had the benefit of your response and might he have your comments on Mr Henderson's article as requested please. He attached for further reference a copy of his letter to you, and so on, which I will not waste the time of the committee on.

You wrote an article as he says and Gerard Henderson raises some issues about it, which is contained in three paragraphs I will read from Gerard Henderson's article. I think what the constituent was just asking was for you to respond to that. I will quote Mr Henderson's article, so perhaps you can give us the answer now and save further correspondence.

He began by conceding that 'all of us are rightly disturbed by the prospect of terrorist acts on Australian soil; counter-terror raids in Sydney and Brisbane, and the shooting of teenager Numan Haider in Melbourne, have highlighted community concern'.

Soutphommasane's reference to the shooting of Haider by Victorian Police failed to mention the evidence that the deceased had wounded and attempted to murder two counter-terrorist policemen. The Race Discrimination Commissioner also declined to remind The Age readers that Haider’s family had migrated from Afghanistan to settle in Australia and that he obtained a good ¬≠education, had a job and a car, and lived in a fine house. Haider was no victim.

Soutphommasane went on to argue that 'Muslim Australians are entitled to a fair go'. This suggests that they do not get a fair go already. It’s another way of saying that Muslim Australians are victims. This led to writer Gabrielle Lord contacting the Australian Human Rights Commission to express her disappointment with the Race Discrimination Commissioner’s comments, which she interpreted as 'largely a reprimand to the non-Muslims of Australia'.

The person who wrote to me simply wanted your comment on those comments by Henderson. Henderson may not have been correct. I think my constituent was interested to hear your response to what Henderson has said. So perhaps you could give that now.

Dr Soutphommasane : Thank you for the opportunity to elaborate on my article of 6 October 2014. I should note that I make frequent public statements about racial discrimination, racial tolerance and community harmony. On occasions there will be commentary on my statements. It is not my practice to respond to every piece of commentary that is made, but given that you have raised this matter I am happy to elaborate. I do want to speak only to my article, I do not want to respond to commentary about my article. I did say in my article that Muslim Australians are entitled to a fair go. I did not use in that article the word 'victim' at any stage so I do not find it reasonable to conclude that that statement—

CHAIR: You disagree with Mr Henderson on that?

Dr Soutphommasane : I do not believe that it is a fair characterisation of my article. My comments in that article were about how we should best respond to community anxiety about terrorism and national security. My firm view—and I hope it is one that is shared by all of us—is that we are better placed to combat threats to our security when we are united rather than when we are divided. It was a call for social cohesion and community harmony in responding to terrorism. With respect to the reference to Numan Haider, that was an incidence that was widely reported and I would have assumed that the circumstances of that incident would have been well understood by readers of The Age.

CHAIR: I do not want to interpret the complainant's request of you, but I assume that he is saying, 'So, why didn't you mention that Haider had attempted to murder two counter-terrorism policemen, and actually wounded one of them?'

Dr Soutphommasane : I can read you the opening of the article to give you the context in which I mentioned Numan Haider:

It is said that the price of liberty is eternal vigilance. Today we have many reasons to be watchful. All of us are rightly disturbed by the prospect of terrorist acts on Australian soil. Counter-terror raids in Sydney and Brisbane, and the shooting of teenager Numan Haider in Melbourne, have heightened community concern.

That is the context in which the reference to Numan Haider took place. This was written at a time when readers of The Age could have been assumed to be familiar with the circumstances of that shooting, which did involve him attacking police officers. I should note, too, that in subsequent commentary I have referred to Numan Haider shooting police officers. So I do not see what the concern is with this mention of Numan Haider.

CHAIR: I am simply raising the issue that an Australian citizen has written to you, asking for you—quite reasonably, it seems to me—to comment on the fact that you had not mentioned that Haider had a good education, a good job, a car and lived in a fine house. Henderson had some views about that, which you have just disagreed with. The point is, a citizen has written to you saying, 'Do you agree with Henderson? Tell us about it'—which you have now just done. It would perhaps have been useful if you had done—I think when we look at Hansard what you have just said will take up about three paragraphs. The issue is why you did not bother to do that, and you have explained that.

Dr Soutphommasane : I have. And as I explained in my previous answer, we did make two efforts to get elaboration on the query. The initial correspondence was a very general and broad invitation to respond to a piece of commentary. It is not my practice to respond to every piece of commentary that mentions me, and I would have appreciated the opportunity for this member of the public to explain precisely what their concern was before we responded. That was the intention behind offering a phone call, but that offer, on two occasions, was not taken up.

CHAIR: It is quite clear to me—and I am not terribly bright—that this person was concerned that Henderson had suggested that you, as the Race Discrimination Commissioner, were largely reprimanding non-Muslim Australians. I disagree with that, but it would have been very easy for you to respond to this constituent and tell him what you told us before, and explain. I do not think it needed a great deal of clarification. Anyhow, hopefully the person who complained now has the answer, and we now understand the commissioner's procedures for dealing with these sort of requests in future.

Senator JACINTA COLLINS: Mr Wilson, you alluded to the fact that you had made a submission to the Legal and Constitutional Affairs Legislation Committee for the inquiry on the Copyright Amendment (Online Infringement) Bill 2015. Unfortunately, I think at the time it might have only been Senator O'Sullivan and me who were participating, although there is much broader interest in that matter. You said in your submission that Australian copyright law was in need of serious reform. Would you care to elaborate on what reform is needed?

Mr Wilson : The principal focus of my submission was to talk about the broad need for some sort of contemporary and relevant expanded fair dealing provision in the Copyright Act or some sort of fair use provision. As I am sure you will appreciate, there is a tension between free speech and the property rights that exist in intellectual property, including copyright. The Copyright Act was drafted in the 1960s. It has had a series of amendments since; clearly, technology has contributed to rapid development and tested the boundaries of the Copyright Act. So my general proposition is that the act should be reformed to reflect the challenges presented from technology, not least because of the rate of technological innovation, so that the Copyright Act can meet the expectations. As a broader philosophical principle, laws should always reflect practice, in general, and the consent of the public. One of the things that concern me greatly is making sure that there is not copyright infringement and that property rights are properly respected. The current provisions, without some sort of expanded fair dealing or fair use provision—particularly for non-commercial purposes, where a royalty payment may otherwise be made—may be legitimising in the eyes of some copyright infringement, which I consider to be a very strong infringement on people's property rights.

Senator JACINTA COLLINS: So the government's failure to act on the fair use principle is a significant concern for you?

Mr Wilson : The Australian Law Reform Commission released a report, if I am not mistaken, in mid-last year, looking at—

Senator JACINTA COLLINS: No, it was November 2013.

Mr Wilson : There you go, November 2013—apologies. It has been around for some time; that is correct. I understand the government has had other issues it wishes to address. I think this has been something that has been abundantly clear for a reasonable period of time. I think the last major effort at reform of legislation, particularly in relation to platform shifting, occurred when Philip Ruddock was the Attorney-General. I cannot remember the exact year. These issues have been evolving over time and I would hope that it is something that is addressed in the future. We need to be mindful that the Copyright Act is still in place—copyright is still broadly being respected—but I do think there is a case for reform around those issues of tension between free speech and property rights, but that is a matter for the government.

Senator JACINTA COLLINS: So the Law Reform Commission's report back in November 2013 dealt with the fair use issue?

Mr Wilson : It made two proposals. One was for a fair use provision and, in the absence of support for that, it was for some sort of expansion of the fair dealing provision that already exists within the act. Since making my comments at the committee appearance, where both you and Senator O'Sullivan were present, I have had a number of people from different industry groups who have come and spoken to me. Without breaking confidences or going into the detail, they have raised concerns with the ALRC proposals—not in the substantive nature, more in the nuance. A proper consideration of these issues through political processes and the processes of the parliament would be most welcome. I would encourage and welcome that and be keen to contribute to that discussion.

Senator JACINTA COLLINS: We are yet to report on that matter. Could I invite you to make a supplementary submission dealing with those issues, rather than canvass them here and now, for the benefit of our considerations?

Mr Wilson : One of the great challenges we have within the commission is a constraint on resources. As you will note, the submission I made last time was a letter which covered some of the broad themes. It covered the broad reflections I have about that specific bill, in particular in relation to copyright and the inclusion of an expanded fair dealing or a fair use provision in relation to site blocking, whereas I suspect something more substantive on copyright generally would be better left for another day, when there is actually a bill that covers the issues of copyright more generally.

Senator JACINTA COLLINS: Okay. So the discussions you have had with people subsequently to those hearings are on the broader fair use issue rather than the site blocking matter.

Mr Wilson : Correct.

Senator JACINTA COLLINS: I understand you there. Attorney, are we close to receiving a government response to the Law Reform Commission's report?

Senator Brandis: Well, let me tell you what the government is doing, Senator Collins. As you know, we are embarking on a very important reform to the law of copyright in relation to online piracy and that legislation is before the parliament at the moment. That will, among other things, include an amendment to the Copyright Act which includes a much stronger power to obtain injunctive relief where there is facilitation of piracy. That is a matter of very great importance to the creative industries in particular—and I have said many times that they are entitled to the fruits of their labour, like anyone else, and their capacity to be fully remunerated for the fruits of their labour is being very significantly eroded by piracy of their audio and visual product. So that is the particular area of law reform on which the government has embarked just at the moment, and we hope to have that legislation through the parliament before parliament rises for the winter recess.

Then there is the broader issue opened by the Law Reform Commission, which Mr Wilson has just addressed, of the desirability of a comprehensive reform of the Copyright Act. And it is right; it is a commonplace observation to make that the Copyright Act in its current form is an act of 1968, when John Gorton was the Prime Minister. There are many who are of the view, and I am one of them, that the time is upon us for a comprehensive review of the Copyright Act. I have just been reading Sir Richard Arnold's Herchel Smith intellectual property lecture given in London last year, in which he relates the various reviews and reports and reforms to the UK Copyright Act in the last several decades. The point that Sir Richard Arnold makes, with which I agree, is that of course copyright law needs to be kept up to pace with the speed of technological change.

So the day is upon us, I think, Senator, when we do need a comprehensive root-and-branch reform of the Copyright Act. But that is not the work of a few months; that is a major piece of law reform. When the government has an announcement to make, we will make that announcement, but we are not going to be making the announcement in Senate estimates.

In relation to the Law Reform Commission report, I have been on the public record as saying—and Mr Wilson and I have a slight difference of view about this—that I am not persuaded about a general fair use exemption. I think Mr Wilson has correctly stated the two principal values intention here between the protection of intellectual property rights and the protection of freedom of speech. From a philosophical point of view, the key task here is to find the right reconciliation between those two potentially inconsistent values in this policy area. But, as I say, I am not persuaded—and this is not the first time I have said this publicly—as to the desirability of a general fair use exemption.

Beyond that, there is really not a lot more I want to say to you, Senator Collins. We have the particular and important measure of law reform before the parliament at the moment. You have heard what I have had to say about a more comprehensive rewrite of the act, and we will have something more to say about that in the future.

Senator JACINTA COLLINS: Attorney, are you aware of some of the concerns put to the committee that acting on the site blocking issue without comprehensive reform is piecemeal and that other measures should be occurring at the same time?

Senator Brandis: 'Piecemeal' is a pejorative. You could describe the same thing as 'targeted'. With my department and my officials, including Mr Fredericks—who is, if I may say so, very erudite and articulate about these matters—we did actually have a discussion about whether or not it was best to go with this targeted area of law reform in relation to an acute issue now rather than bundle it up as part of a long rewrite of the act. We made the judgement, which I have no doubt was the right judgement, that we should deal with the urgent matter by a targeted piece of law reform now. Of course we are mindful of the fact that the current Copyright Act is not far off its 50th anniversary.

Senator JACINTA COLLINS: Am I correct in understanding from what you said that it is time for a more comprehensive review?

Senator Brandis: I think it has been time for a while, as a matter of fact.

Senator JACINTA COLLINS: It was in the context of my question about a Law Reform Commission report that dates back to November 2013.

Senator Brandis: As I was at pains to point out, the main recommendation of the Law Reform Commission's report is not one that I am disposed to agree with. Law Reform Commission reports are very interesting and illuminating, but they do not necessarily point to the only way to reform a statute.

Senator JACINTA COLLINS: I understand that, but a government response and alternative direction would be helpful in aiding understanding, so I look forward to the announcement you have indicated you do not wish to foreshadow in this hearing.

Senator Brandis: I am not going to be making any announcements, but I think everybody in this industry, everybody who takes an interest in this area of policy, would agree that the time is upon us for the sort of comprehensive look at the Copyright Act that has been undertaken in recent years by the British government.

Senator JACINTA COLLINS: Yes, I think there is no question—from what we are hearing also—that there is a very strong view that the time is upon us for that.

Senator Brandis: To put it in context, the British copyright act in its current form owes its genesis to an act of 1911, which was replaced by an act of 1956, which was replaced by an act of 1988. The 1988 act has been the subject of a multiplicity of inquiries since: the Gowers review, the Hargreaves review and various others. This is a much debated policy space, but we do need that debate to bear fruit in comprehensive law reform.

CHAIR: That is all the questions we have on this matter for today, however I need to clarify what we are doing in relation to the matter we started with. The committee had a private meeting and what we are going to do—and this is covered by the Senate standing orders—is adjourn this examination of the Australian Human Rights Commission to a spillover day. That will give the committee time to consider the issue of the public interest immunity claims and will enable the committee to have the commission, the minister, the secretary and others back to pursue either the public interest issue or the substantive issue. So we are going to adopt the procedure of suspending this examination to a spillover day. It may not be necessary to resume, in which case the committee will let everyone know. If there is to be a spillover day to deal with this further, we will work with all parties—including both the minister and the commission—to try and get a time that is convenient for all. That is the procedure we will follow.

Senator O'SULLIVAN: On that point, Chair. The president and her officers did indicate that there was some material pursuant to my request that was not the subject of the immunity claim and that they were willing to give us that administrative batch. I would seek, through you, to ask the commission to provide that if possible.

Prof. Triggs : We will be very pleased to provide that material, and thank you very much for considering our submission. We look forward to a resolution to it, either with a spillover day or through your own deliberations. Thank you very much indeed.

CHAIR: You will take on notice Senator O'Sullivan's request for that other material, and you will provide what you believe you can.

Prof. Triggs : We will.

CHAIR: The committee will now have a short private meeting.

Proceedings suspended from 11 : 40 to 11 : 45

Senator SIEWERT: Ms Ryan, I want to go back to some of the issues we have dealt with before. I am particularly interested to ask you for some updates on complaints. We talked before about the number of complaints you have had in relation to people with disability, particularly as their complaints may relate to employment. I am interested in both people with disability and—wearing your Age Discrimination Commissioner hat—the situation with older people with respect to complaints around discrimination in the workplace.

Ms Ryan : Complaints under the Age Discrimination Act are about 70 per cent in relation to discrimination in employment. Complaints under the Disability Discrimination Act are significantly about employment, in the vicinity of 30 to 40 per cent. Another significant area of complaint is provision of goods and services. I do have the brief with the numbers, which I can table. That situation is not showing any improvement. There is still obviously extensive discrimination against both groups of people when it comes to getting jobs, keeping jobs and getting other benefits of employment such as access to training and so forth.

Senator SIEWERT: You said for older people it is 70 per cent. Has that not shown any improvement, or is it static?

Ms Ryan : It moves around a little bit. Employment discrimination is the issue that older people come to the commission with complaints about. There are some others to do with goods and services, but it is overwhelmingly employment.

Senator SIEWERT: Does that break down into cohorts? When you look at the figures even people over the age of 45 are starting to report this. Anecdotally, that is what they are saying to me. Looking at the figures, that is where the spike is starting to go up. Are you breaking down those complaints into cohorts?

Ms Ryan : That work is being done. It is being done by our conciliation and investigation division in preparation for the national inquiry into employment discrimination, which is now underway. They are currently analysing age cohorts and types of complaint, and we will have that data available fairly soon I think.

Senator SIEWERT: But you will not wait till the end of the inquiry to release it?

Ms Ryan : I cannot see any reason why it would wait until the end of the inquiry. It is very helpful for us to know. No doubt, as witnesses come before the inquiry or make submissions, our understanding of the different effect on different age cohorts will be important. The other relevant set of data we have, and you are probably aware of it, is that we recently published the first national prevalence survey on age discrimination in employment. It was launched by the Treasurer a few weeks ago. I am pleased to say it attracted a lot of publicity, because there are issues that need the spotlight of publicity if we are going to move forward. In that, we do collect data according to age cohorts from 45 up, in five-year age groups, with the last one being 65-plus. If you have not had the opportunity to have a look at the data, I think you will find it very interesting.

Senator SIEWERT: I did see the release of that survey. It was pretty scary actually. In terms of the inquiry, when do you start formal hearings?

Ms Ryan : We were having a meeting on that very point just yesterday. We seem now almost certain to be having our first public hearing in the ACT on 1 and 2 June—I think that is right. The planning has progressed very well. We have a website, which went live the day that the Attorney was good enough to come to the commission to launch the inquiry, and that will have all of the information about where and when we are conducting public hearings. It also has an email facility where anyone interested in the inquiry can register, and then we will notify all of those who register. It also will be our practice to notify local members and relevant senators when we come to their area, and I think the government has agreed that that was a useful thing to do. It is kicking off in the ACT.

Senator SIEWERT: Next week.

Ms Ryan : Yes.

Senator SIEWERT: And you do not have to have made a submission to be able to appear?

Ms Ryan : We are asking people to express interest, just from the point of view of being able to accommodate everyone who wants to come. Should we get more than the room accommodates, we will have a second hearing of that particular group. People can just turn up, but it is helpful to us if they register in advance, and, of course, it is particularly helpful that we know whether people with disability who wish to come along have particular needs that we can accommodate. We will do that better if we know in advance.

Senator SIEWERT: I want to come back to the issue of people with a disability in a moment. Regarding the combining of Restart and a number of the wage subsidy measures, was your advice sought by government around what you thought of the approach?

Ms Ryan : Yes, I have had a number of conversations with the minister, Senator Abetz, over the Restart wage subsidy program, which is now the only one that is there. In fact, we agreed that it is a useful subsidy but one that is not being taken up in very large numbers at the moment, compared with the number of older people who are unemployed. We have discussed how it could be better targeted and that we could have better communications Actually, as a result of that, I have agreed to accept Senator Abetz's invitation to do some work as an ambassador for the Restart wage subsidy, which will mean travelling around to address meetings of eligible employers, focusing, I think, on small business, where the subsidy is most likely to be—a decision-making element around whether—

Senator SIEWERT: Did you canvass, or did the minister canvass with you, the bringing forward of payments for the participants as well?

Ms Ryan : To one year instead of two years?

Senator SIEWERT: Yes.

Ms Ryan : We generally discussed the operation of Restart on more than one occasion, and I think we agreed that the two years with separate landmarks going through the two years could be seen by very small businesses as onerous. The actual decision to reduce the period of time under which you can get the subsidy if you are eligible is a government decision, but I welcomed it because I think it will make it more likely that small employers will consider using it and, thus, employ people over 50, which is what it is all about.

Senator SIEWERT: People have raised with me concerns that it might mean that it will have negative outcomes for people being employed.

Ms Ryan : The existence of the Restart—

Senator SIEWERT: No, the fact that the payment time has been shortened.

Ms Ryan : My understanding is that the minister and his departmental advisers—I have also have the opportunity to meet with them—are very alert to the possibility of churning, which I think your question alludes to, whereby an employer will take a person on for 12 months, get the $10,000, let that person go and take on another person. They are very alert to that and I believe that they will be taking every step they can to ensure that the employer who takes a person on and gets this subsidy is serious about that. I think 12 months is quite a good period for the employee to demonstrate his or her worth. As you will be aware, the pool of unemployed over 50s who can be hired under this program comprises people who have already been on benefits for six months, so mainly they will be sourced through the Job Services organisations. I hope that there will be efforts made to offer support once the person is placed and support to the employers, so, if a problem emerges, they will not be left alone to resolve that.

Senator SIEWERT: I will ask the department about that as well. The other point that has been raised with me is the very issue you have just mentioned, which is the six months process—having to wait for six months. Have you looked at that and any potential issues? People have talked about loss of skills and the issues that go with longer term unemployment making it harder for people to gain employment.

Ms Ryan : It is my view, and I am on the record as saying, that the sooner person is assisted back into employment after losing their job, the better, and this is particularly crucial for the over 50s, who actually have the longest period of unemployment—and I know you are aware of that. I did raise with the minister and his department the possibility of having a much shorter period of time that the person had to be unemployed for before they could go into that pool. I also pointed out that requiring someone to have been on benefits for a period of time means that the person who loses their job but has some savings—

Senator SIEWERT: The savings have already run down.

Ms Ryan : They have to use their savings, which seems to me not to be a positive outcome—or the person may have a partner in employment. That has been raised and it has been considered, but at this stage the government's view, as relayed to me, is that they are very keen to assist primarily the people who are on benefits. That is a government policy priority, but the surrounding issues are issues that have been put forward. No doubt, as we go around promoting Restart, we will hear more about how the program might be more effective if there were changes. As you would be aware, it is not my competence to make any of those changes, but I will certainly be relaying any such information I get to the minister, who I think will be involved himself in some of these activities.

Senator SIEWERT: Has Mr Gooda left?

CHAIR: Yes, I am afraid we were told that you just had age commissioner questions and we brought the age commissioner back specifically for you. Perhaps you could place your question on notice.

Senator SIEWERT: In that, I will put those questions on notice. I have a couple of questions on disability. Regarding employment, you said 30 to 40 per cent.

Ms Ryan : Yes.

Senator SIEWERT: Is the 30 to 40 per cent the range over a period of time and so there have not been any improvements?

Ms Ryan : I would have to have the year-on-year details, and I do not have them in front of me, but I will certainly provide you with that information. Generally, the situation of access to employment has not improved in recent years. You will be aware that in the Australian Public Service, for example, there is a very low rate of employment of people with disability, which is lower than it was some years ago. I am already having discussions with the Public Service Commission, secretaries of departments and so on around that. I will provide you with those detailed year-on-year comparisons on notice, but it seems that the situation has not been getting better; in fact, it might have been deteriorating, hence the relevance of the national inquiry that Senator Brandis asked us to undertake.

Senator SIEWERT: I have a question around housing.

Ms Ryan : I am sorry, I was just getting some advice. I have misled the committee, I am very sorry. I got two lots of meetings confused. The Canberra consultations will be 6 and 7 July. I have other meetings in relation to the enquiry on the 1 and 2 June. Thank you for that correction, I apologise.

Senator SIEWERT: So that is July?

Ms Ryan : It is 6 and 7 July, here in the ACT.

Senator SIEWERT: I am wondering if you have also received complaints or being involved with issues around housing for people with disabilities.

Ms Ryan : In general, over a period of time, had my attention drawn to the particular difficulties. The lack of affordable housing is a nationwide problem, particularly acute in Sydney, the city of where I live, because of costs and so forth. I know my colleague Commissioner Wilson is also very interested in the housing affordability issue. We are hoping to do some work and get some views on how that might be rectified. It has also been drawn to my attention that, as the NDIS roles out—and I am happy to say that most of the reports we get are good about the effectiveness—people who get the benefits of NDIS supports will be more able to live in independent housing. That is their aim, and often their families' aim but, of course, the affordable housing has to be there. I have not done any specific work on it. I am aware of the problem and I am hoping that I will be able to do some work with Commissioner Tim Wilson in the next few months.

Senator SIEWERT: Thank you. I am aware my time has run out.

CHAIR: Thank you again for you and the Commissioner for coming back after we had parted company before.