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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Australian Human Rights Commission

Australian Human Rights Commission

[12:21]

CHAIR: Welcome. Are there any opening statements?

Prof. Croucher : This year, 2020, has raised unprecedented challenges for the human rights of all Australians. Protecting the lives and health of the entire community has required extraordinary measures being introduced across all levels of government. This has come with severe consequences for people's ability to move freely in the community, to travel across state borders, to be with family and friends and to undertake their means of business. Everyone has been and continues to be affected. On behalf of the Australian Human Rights Commission, I extend my sincere condolences to the families of the 905 people who have lost their lives to date during the COVID-19 pandemic in Australia. Losing a loved one is hard at the best of times, but to do so in circumstances where there are restrictions on visiting an ailing family member, particularly if they are in an aged-care facility, on travelling to visit a dying family member and, ultimately, on being able to be present at a funeral to celebrate their life is deeply saddening.

The commission has been monitoring the measures that have been introduced by the federal government since March, and our commissioners have provided advice on a range of issues. We have been focused on privacy protections relating to the COVIDSafe app, the gendered impact of the pandemic and economic response measures to address this, the mental health impacts on children, the vulnerability of older Australians to elder abuse and employment discrimination, measures to build social cohesion and combat the scourge of racism in the community, the vulnerability of people in immigration detention and temporary visa holders in the community, community solutions to keep Aboriginal and Torres Strait Islander peoples safe, and guidance for health- and disability-care providers for persons with disability.

We continue to receive complaints under our discrimination and human rights jurisdictions relating to the pandemic. Initially, these were significantly focused on experiences of racism. Since then, the focus has been on human rights breaches, and race and disability discrimination. Between January 2020 and this morning, we have received 316 complaints and 1,200 COVID-related written inquiries.

Recently we have heard much public debate about the tension between protecting public health and protecting human rights. I welcome these debates, and particularly the rights consciousness to which they give voice. These debates are all about human rights, because measures that protect public health also operate to protect human rights—like the right to life. If these measures are to restrict other human rights, then they must meet clearly defined tests set out in international law: being necessary to protect public health and proportionate to meet that goal with the least restrictive measures to do so.

Assessing the appropriateness of restrictions at any given point in time is a complex task and one that can rapidly change as the impact of the virus also shifts. Such is the nature of emergency responses. It is why decisions that are made within a short window of time, perhaps within 24 hours, must be subject to regular, ongoing scrutiny, because what was appropriate in the circumstances of three months ago may not be so justified in the circumstances of today.

There are some challenges that we and the community have faced in assessing whether the human rights impact of the emergency measures is justified. As with other scrutiny measures at the federal level, such as the Parliamentary Joint Committee on Human Rights, the Australian Human Rights Commission is limited by statute to scrutinising federal enactments and proposed enactments. Why have we not formally examined the public health orders imposing restrictions in Victoria or border closures in other states? Because we do not have the legislative mandate to do so.

This pandemic has been unusual in that many decisions have been made collegially by governments, in the national cabinet, and the responsibility for implementation has then been dispersed among other layers of government. Different layers of scrutiny have then applied, depending on whether measures are legislated, whether they are in the form of disallowable instruments or whether, as has been the case for a number of measures, they are introduced through instruments that are not disallowable or reviewable and which have not included human rights compatibility analysis.

The use of legislative instruments means there is not the same level of independent scrutiny as there is for regular legislation. Much of the scrutiny comes after the fact. There has also been the use of extraordinary measures, known generically as Henry VIII clauses, whereby delegated instruments can change the meaning of legislation agreed by the parliament.

I am concerned about the lack of transparency in explaining the continued justification for some emergency measures, and equally for identifying precisely which level of government is responsible for some of them. The checks and balances that ordinarily exist are integral to our democracy. Australians have been and continue to be exposed to potentially unnecessary restrictions of their rights and freedoms because of the lack of transparency and accountability. The complexity of our federal system also makes it difficult to ensure appropriate scrutiny of these measures. For example, who is responsible for assisting Australians to be repatriated to Australia? It would seem that it is a federal obligation and something where consular assistance would be necessary. But it is the role of states to determine how many passengers can arrive in each state or territory.

What is the impact of this? I am concerned that Australia, as in all our governments, may not be meeting the obligation in article 10 of the Convention on the Rights of the Child to take steps in an 'expeditious manner' to enable a child or their parents to enter or leave Australia for the purpose of family reunification. It is now almost nine months since the first COVID-19 case was confirmed in Australia, on 25 January, and with the rapid growth of transmissions overseas we have a long way to go before it is over.

We need to embed a human rights scrutiny process better into all emergency responses to ensure that any intrusion on our rights is always fully justified and that the debate is had at the time the restrictions are considered, not afterwards. Such scrutiny would aid in maintaining public trust and ensuring compliance with restrictions. It would also provide a safeguard that, when we plan for recovery from this crisis, no-one gets left behind.

I want to conclude by reflecting on the life and achievements of the former Age Discrimination Commissioner, the Hon. Susan Ryan AO. Ms Ryan is of great importance in the history of the Australian Human Rights Commission and of human rights in Australia. She was the instigator of the Sex Discrimination Act 1984 and was the first female cabinet member for the Australian Labor Party. She was the inaugural Age Discrimination Commissioner, from 2011 to 2016, and for a time acted as Disability Discrimination Commissioner. I had the privilege of working with Ms Ryan when I was president of the Australian Law Reform Commission and leading an inquiry into barriers to work for older Australians in Commonwealth laws, for which Ms Ryan was a part-time commissioner.

Ms Ryan was widely respected across political lines and acknowledged as a fierce advocate for human rights and for fairness, evident so powerfully in the condolence motions in this parliament. Her landmark Willing to Work: National Inquiry into Employment Discrimination Against Persons with Disability and Older People holds many important lessons as we navigate the pandemic and its economic consequences. On behalf of the Australian Human Rights Commission, I pay tribute to Susan Ryan and acknowledge her deep and lasting contribution to the commission and, more importantly, her legacy for Australia.

In his condolence motion the Prime Minister, the Hon Scott Morrison MP, said:

Susan Ryan will be remembered as someone who sought to make our country bigger and more open to every citizen. She leaves a legacy that will endure.

Senator Wong spoke of Ms Ryan's wanting to make Australia better; and Senator Henderson spoke of her as a warrior for women and education. When Ruth Bader Ginsburg passed away in September, Susan tweeted: 'A massive loss to humanity. Vale RBG.' That is also a fitting tribute to Susan: a great loss to humanity. Vale Susan Ryan.

Chair, we stand ready to assist the committee with your questions. Thank you. And I'd like to table my opening statement.

CHAIR: Thank you. We accept that. And we appreciate the food for thought in your opening statement. We will digest it over lunch.

Proceedings suspended from 12 : 35 to 13 : 37

CHAIR: The Legal and Constitutional Affairs Legislation Committee will now resume with its examination of officers representing the Australian Human Rights Commission.

Senator KIM CARR: Professor Croucher, your opening address, I presume, is pretty much an outline of your work program. Is that a fair description?

Prof. Croucher : The work program is not outlined in my opening remarks. My opening remarks were directed particularly to the kinds of matters the commissioners and I have been looking at during COVID. In response to a question at the last estimates, I referred to the fact that each of the commissioners has an important project of work and they are quite independent of the matters to which I referred in my opening remarks, which I used to highlight the particular areas of challenge to which the Human Rights Commission has directly responded.

Senator KIM CARR: I think all of your commissioners, given the nature of your address, will be interested in some reports coming forward from the scrutiny of bills committee and the committee that deals with delegated legislation, specifically around those issues that you've raised. I think there's a broader concern in the parliament about those matters, but I will assume that you're outlining, effectively, for all of the different commissioners, the broad areas, rather than asking each of the commissioners to give a rundown of your work plan, if that's a fair description. If you want to contest that, this is your chance, but I'll take it that that stands. Do you have any concerns about the level of resourcing of the commission so as to meet the types of work that you want to do?

Prof. Croucher : Thank you, Senator. I always welcome a question on budget issues! In light of the challenges that all of Australia has been facing and the budget implications, I can report that the commission did not receive any cuts to its budget. We generally suffer the same challenges that all small agencies do, such as the impact of efficiency dividends and that we are less able to access new funding compared to some of the larger agencies. We have an important mandate to discharge and there's always room for additional funding for us to discharge that mandate.

Senator KIM CARR: There was specific reference in your opening remarks, and a particular emphasis, to the questions around antiracism. We've had a number of agencies highlight the dangers we're now facing in light of the current turmoils within Australia. ASIO's annual report, for instance, made strong reference to questions around what has been described as right-wing extremism. There is the sharp and terrible focus which arose as a result of the events concerning the Christchurch massacre and the questions that have been raised about the identification of small cells of adherents gathering to salute various fascist symbols, about use of weaponry and about various hate ideologies. Mr Burgess made this point in a number of places, particularly in an address in February. Could you indicate the commission's work on the issue of dealing with matters relating to racism in this calendar year? Could you explain or elaborate to us what you're doing to combat racism in Australia at the moment?

Prof. Croucher : Thank you for that question. There are two parts to the answer. One of [inaudible]—

CHAIR: The magic of technology!

Senator KIM CARR: It's a tremendous success. What's the—

CHAIR: We'll suspend briefly while we try to resolve this technical issue.

Proceedings suspended from 13 : 42 to 13 : 54

Prof. Croucher : I think that at the point we lost the video connection I was about to hand over to Chin Tan, to respond to the second aspect of Senator Carr's question. Is it appropriate that we follow that order now?

CHAIR: Yes, please; go for that.

Mr Tan : Thank you for that question. It's very important at a time like this. COVID-19 has seen some concerns, in terms of the substantial rise in race activities, more in terms of being focused at some communities, particularly the Asian communities. In terms of the work that we are doing, and have done, it's a continuation and reinforcement of the strategy that we have in place, which is the It Stops With Me campaign as well. What we have done is to refresh, very much, and update all the activities and information and build a different level of connection with our allies and partners and reinforce the capacity to deal with racism, particularly at a time like this.

In terms of projects and dealing with the issues of right-wing extremism, we are equally concerned about the rise of this phenomenon in Australia. We have, in the aftermath of Christchurch, entered into a project based around understanding the needs and concerns of the Muslim community. It has been ongoing for a year and comprises both a quantitative and a qualitative research component, which would help us to understand and tell the story of Muslim Australians in this country and underscore some of the concerns and possible solutions about how we can move this forward. We hope to have this project finished by the end of this year.

In the times of COVID-19, the activities that we have engaged in have been largely about supporting governments, both the federal and state governments, and reinforcing capacities to deal with racism. For instance, we're able to work with the federal government in ensuring that there are support mechanisms, tools and devices, within the government framework of tackling COVID-19, that respond to the needs of the multicultural communities.

Senator KIM CARR: Have you noted or is the commission of the view that there's been an increase in right-wing extremism, or is it more a matter of general racism that you're detecting?

Mr Tan : It's a bit of both. It's a component that's entwined, in a time like this. We've noted an increase in overall racism. But we've also noted, from reportage and these comments as referred to by ASIO, an increase in right-wing activities. We've taken onboard this clear indication, that it is an issue for us, and have made an outreach to AFP and ASIO and have endeavoured to connect with them to find collaborative ways to deal with this particular issue.

Senator KIM CARR: Has there been any evidence of an increase in racism that might be attributed to a response to the COVID-19 pandemic?

Mr Tan : We can only judge by the reports that we've received, both in terms of the media and in terms of community organisations that do research in this particular area, and they point to an increase. From our perspective, in terms of the number of complaints that have come through, while the numbers are small, there is an indication that, yes, there has been an overall increase. Of those complaints under the Racial Discrimination Act, about one-third have been in relation to COVID-19.

Senator KIM CARR: I see. I noticed that a minister recently acknowledged that there had been an increase in racism against Chinese Australians. That was just in the last, what, two months? Would you agree with that assessment? Has there been an increase in racism directed at Chinese Australians and Chinese residents in Australia?

Mr Tan : From the interactions we have and the reports we have from the surveys and reporting that have been done by organisations such as the Asian Australian Alliance, for example, and All Together Now—which are very important groups in the community that monitor these activities—there is the consensus that there has been an increase in racism in the last few months. In view of COVID-19 being an issue, a lot of that has been directed towards Asian communities.

Senator KIM CARR: Do you have any explanation for why this is occurring? While you're at it, can you perhaps provide us with some advice as to what the commission thinks should be done about it?

Mr Tan : Well, they are largely COVID-19-related. From the statistics that we've got in terms of complaints coming through to the commission, there is an indication of a general increase in the level of concern about various issues, not confined to an attribute of race and racism but obviously right across women's issues and obviously disability as well. So it is, in my view, a sign of the times, in terms of the fear and disruption that come through and generate uncertainty, that causes an increase in racism.

We work with government in terms of the resourcing capacity of government to put in place structures that support communities. We have done that largely by ensuring that the communities get enough information to understand where to get support in the event that racism occurs. Overall, however, it's about tempering and dealing with racism as a general educational issue in terms of providing the community with an understanding of the need to act within the confines of what is considered acceptable and reasonable conduct in a time like this.

Lastly, we believe another important issue is the narrative of ensuring that where the media reportage and where the leadership of this country are talking, are having a conversation, about racism, we do the right thing in ensuring that we keep it in perspective about race issues.

Senator KIM CARR: Professor Croucher, from what you were saying before, I understand that you had no additional resources provided in the budget. Have you approached the government about additional assistance, given what appears to be the increasing stresses that come about in terms of social cohesion and the questions that are arising with regard to increasing levels of discrimination in a range of areas—we've mentioned racism, but also in other areas of social disharmony? Have you had any discussions with the government about those sorts of questions?

Prof. Croucher : Yes, we've opened up a conversation around a national anti-racism framework, and that conversation is ongoing.

Senator KIM CARR: The former Race Discrimination Commissioner proposed a national anti-racism partnership and strategy. Was that the case?

Prof. Croucher : Yes, that is correct.

Senator KIM CARR: What's happened to that?

Prof. Croucher : That is still continuing. Commissioner Tan is leading a proposal for a national anti-racism framework, and that is the conversation that's ongoing.

Senator KIM CARR: Commissioner Tan, how are you leading that work? What's actually going on to implement that work?

Mr Tan : Well, the strategy you mentioned was more of a campaign that came out from the 2018 National Anti-Racism Strategy, funded until 2015, and it's been ongoing on the back of self-funding from the commission. The President, Professor Croucher, referred to a framework that I've now designed and it's an important element of giving it an overarching capacity to highlight the challenges that exist in addressing racism.

So it is looking at a framework, more than a three- or four-year strategy, that will give us the capacity to play a significant role by outlining a coordinated shared vision to combat racism. It is still in the early stage of discussion with the Attorney-General's Department and with the Department of Home Affairs but it is my view that it is an important element for this country to have an overarching framework to deal with racism so that when it's asked, 'What is Australia doing?' and, 'How is its outlook in terms of tackling racism?' we have a framework that cuts across all sectors of communities, from government to the corporate sector community, about how we approach racism in this country.

Senator KIM CARR: Mr Secretary, it will be no surprise to you to hear that any agency within the portfolio when asked the question, 'Do they have enough resources?' they indicate that they feel they could do with more.

CHAIR: I've never heard an agency say they didn't want more.

Senator KIM CARR: Clearly you'd not be unfamiliar with that. But what I put to you is this: given the particular circumstances that the country faces at the moment and given what we've heard from the commissioners, the conversation that is actually required here, surely, is that further action is required in terms of social cohesion, anti-racism and all the things that the commissioners have spoken about.

Does the department recognise that there are, in fact, extraordinary circumstances at the moment? Given the amounts of money that have been put forward in this budget, surely there is a case?

Mr Moraitis : You echo my thoughts as well. We had a meeting three or four weeks ago with Mr Tan, Professor Croucher and the department to discuss the very issue of the racism framework. I expressed my full support for working out the parameters of that and engaging with the stakeholders. At the policy level and in terms of the ideas the commission are putting forward, we're totally supportive.

The resourcing issue didn't come up in that conversation, if I recall. If it did it was put aside until we get the framework and parameters right. We're on the same track; we're on the same wavelength. We want to go forward with this. We certainly recognise that social cohesion issues are very important and, as Mr Tan alluded to, other departments have an interest in this as well, particularly home affairs, and I'm fully supportive of that outreach. So we're on the same page with the commission—

Senator KIM CARR: I think that's very encouraging to hear that. However, I trust that the commission doesn't have to wait another year, or another budget, before action could be taken. There are other opportunities aren't there?

Mr Moraitis : Sure. It's still, literally, early weeks and I think the commission can confirm that I expressed strong support for their efforts and their design work that they were doing and, when we get to the issue of resourcing, there is a budget, of course, but it's not unheard of for us to, if we think there's some imperative to find some small amounts of money where we can—for example, with Commissioner Jenkins's report. This department supported Commissioner Jenkins at various stages of both the survey and the report. When money was tight and we found a bit of money here and there—small amounts but, nevertheless, in a cumulative way—they helped get to the end process, which was a great survey and a great report. So it is possible. You know there are always constrained circumstances. You know all that—

Senator KIM CARR: Yes, I understand the circumstances. I appreciate—

Mr Moraitis : In the same way that the commission or any other agency has efficiency dividends and other things—

Senator KIM CARR: Thank you. That's a very positive response.

Mr Moraitis : I'm certainly supportive and where we can, once we have specifics about what it looks like and how much it would cost, we would look at what we can do inside the portfolio, obviously in consultation with the Attorney and, if it's warranted, in proposals in due course.

Senator KIM CARR: Thank you. Professor, I think that's a fairly strong lead for you there. In the opening statement of your report, you indicated that you thought there'd been some issues in regard to the rights of the child insofar as the matters regarding international travel restrictions. Did I understand you correctly?

Prof. Croucher : Yes, you did indeed.

Senator KIM CARR: Are you saying that there are breaches? Is it your judgement that there may well be some question about our international obligations in regard to arrival caps?

Prof. Croucher : Yes. The limitations on people travelling to and from do invoke issues of the rights under various international covenants in relation to movement. Those rights, though, are subject to considerations such as public health. But when the measures endure for such a long time, there is reason to want to be concerned to look at them again.

Senator KIM CARR: And have you had any complaints on these matters from members of the public?

Prof. Croucher : Yes, a number of complaints under our human rights jurisdiction, as distinct from our discrimination law jurisdiction, have been raised. I won't speak about those specifically, other than just to note that there have been such complaints. If you require any further discussion, I will hand over to the Human Rights Commissioner, Commissioner Santow, as those complaints are heard through direct delegations from me.

Senator KIM CARR: Commissioner Santow, can you tell us what has been the number of complaints and what is the nature of the complaints?

Prof. Croucher : If I may intervene, it's not appropriate for Commissioner Santow to provide that answer. I can tell you that, of the complaints, we have 125 that fit under that jurisdiction, but that includes a whole range of matters, some of which relate to the travel issues. They're not all confined to that, but some of them do relate to those travel issues. Perhaps if I may, Commissioner Santow can talk about the approach that may be taken in such a case.

Senator KIM CARR: Yes. I'm interested to know what's the nature of the complaints, though. I've been dealing with a number of these things through my electoral office. I'm sure senators here would have dealt with a number of complaints on these matters, so what is the commission hearing about the nature of the complaints?

Prof. Croucher : The complaints are issues that are ongoing in the family reunification issues. I might hand to Commissioner Santow, who can talk about the matter in general terms. But as you would appreciate, the complaints handling jurisdiction is done entirely by delegations from me and all of my other fellow commissioners have no direct role in relation to complaints handling.

Senator KIM CARR: I think I've got the subtleties there.

Mr Santow : In broad terms, not referring to specific complaints, the concerns that we have heard is that while, in principle, Australians who are stuck overseas are permitted to return to Australia, obviously the numbers are very limited. It means that travel is not always accessible, with limited seats on planes, reportedly high costs with perhaps some preferencing for passengers who are able to pay business class fares. The commission considers that the government should have a very clear strategy for how it will support people to return from overseas, especially given that the pandemic is not a short one and there are limited travel options. We acknowledge, for example, that this week the government has negotiated with one of the major airlines, Qantas, to bring people home from the United Kingdom, India and elsewhere. We think that that's the sort of activity that will deal with some of the concerns that we are hearing. But we're also conscious that this is something that has to be dealt with in a cooperative way between the federal, state and territory governments, because once people arrive in Australia they're subject to mandatory quarantine, the states, by and large, have the primary role in handling those quarantine processes, and that is a restraint on the total number of people that can fly to Australia, so that's a related issue that also needs to be addressed.

Senator KIM CARR: Commissioner Oscar, Aboriginal and Torres Strait Islander Social Justice Commissioner, I understand you're working on a women's voices consultation, which is part of the project you've been undertaking travelling around the country asking Aboriginal and Torres Strait Islander women and girls to share their experiences about their challenges, priorities and aspirations. Can you indicate to the committee what you've identified as the main priorities and aspirations that have arisen through these consultations. In so doing, can you also assist us by indicating ways in which the Commonwealth can assist and what you believe the priority areas have to be of for the Commonwealth in addressing those issues.

Ms Oscar : Thank you for the opportunity to update you on the Wiyi Yani U Thangani (Women's Voices) Project. I transmitted the report to the Attorney-General on 9 October. We are waiting for confirmation of the tabling date. It will be tabled, we understand, before the end of the year. The report is an extensive whole-of-life report that elevates the lived realities and rights, needs and aspirations of First Nations women and girls. The report has seven overarching recommendations necessary to address systemic issues and reshape engagement with our women and girls. I cannot discuss the recommendations and other aspects of the report at this stage, as the report is now subject to parliamentary privilege. I can say that the scope of stage 1 grew to hear from women and girls across the nation of all ages. We went to 50 locations and included additional engagements with our senior women folk. The report itself takes a holistic approach. The complexity in putting that together has taken time. It will be a landmark report, as we have not heard from First Nations women and girls in 34 years in this country on the issues that impact them. The other delay that we experienced in finalising the report was the staffing shortages during this time.

In stage 2, we will be working with governments and stakeholders on implementing the key findings in the report, and responding to the needs and aspirations identified by our women and girls.

Senator KIM CARR: I turn to Dr Patterson. The aged care royal commission said the government obviously had no plan to deal with the COVID-19 outbreaks in residential aged care. Do you think this can be seen as an indication of discrimination against older Australians?

Dr Patterson : I believe that COVID-19 has actually exposed a number of fault lines in borders, in aged care, in all sorts of areas, and we've had a whole aged-care commission. I have raised this issue of human rights within aged care when I made my submission. The most important thing now is for us to look at the recommendations of the royal commission and ensure that the recommendations are implemented. We need to look forward to look at: what can we do to reduce the sorts of things that are being reported in the royal commission?

Senator KIM CARR: I'm putting to you a more basic question, because aged care is clearly in the direct remit of the Commonwealth and there's been this extraordinary number of people dying. There can't be, surely, any argument about that. I'm wondering whether or not you feel this is a reflection upon our attitudes towards ageing in this country, that this has actually occurred in aged-care facilities?

Dr Patterson : That's a different question than you asked me before.

Senator KIM CARR: Well, I did say: do you think this could be seen as discrimination against older Australians.

Dr Patterson : I don't know that you could claim it's discrimination, but I do think it's most probably a lack of the addressing of human rights across aged care.

Senator KIM CARR: Let's not be pedantic. I thought I was pretty clear that it's a measure of discrimination. There's a view in some quarters that, in fact, this approach to the pandemic can be measured by suggesting that some people's lives are not of great value. I have a number of quotes before me. Are you familiar with attitudes which suggest that—and I've read it in a whole lot of newspapers in this country—we can allow people to die for the benefit of the economy? What do you make of that?

Dr Patterson : I think that Australia has—

CHAIR: Senator Carr, that's out of line.

Senator KIM CARR: You don't think that's right?

Senator HENDERSON: That's a really appalling thing to say.

CHAIR: That's a really crude characterisation, and I think you're better than that.

Senator KIM CARR: Former Prime Minister Tony Abbott said in a speech that, in regard to COVID-19 deaths:

… 'How much is a life worth?' Because every life is precious, and every death is sad; but that's never stopped families sometimes electing to make elderly relatives as comfortable as possible while nature takes its course," …

Does that not suggest to you that people are prepared to take the view that some people are actually more vulnerable and able to be treated in that manner?

Senator Cash: Chair, with all due respect to Senator Carr, he's asking the witness to pass a judgement, an opinion, on an excerpt from a speech that someone else has given. You probably need to put to the person giving the speech—in this case, I believe you said Mr Abbott—

Senator KIM CARR: Senator Cash, I asked a general question—

CHAIR: Can I hear Senator Cash's—

Senator Cash: The witness is not in Mr Abbott's mind.

Senator KIM CARR: No. I asked a general question: is the witness familiar with attitudes being expressed. It was disputed. I've quoted one. And now you want to go to the question about whether or not that quote should be put to the former Prime Minister or to the commissioner that's before us. I'm asking the general question: is the commissioner familiar with an attitude that people, older people, can be allowed to die for the benefit of the economy?

CHAIR: Senator Carr, I find this quite offensive, but, given I am a free speech advocate, I'm inclined to let you ask the question. Though, I would suggest to you that it would be wise to focus yourself on matters relevant to the budget rather than putting the contents of miscellaneous speeches to witnesses.

Senator KIM CARR: You can put to me what you like. I'm asking the commissioner for age discrimination whether or not there has been discrimination in our aged-care facilities, given that so many older Australians have died in those facilities directly the responsibilities of the Commonwealth of Australia.

Dr Patterson : Senator Carr, those are three different sorts of questions you've asked me. My view is that every life has equal value, and I think we have to be very carefully before we actually attribute blame. Some people here in Victoria would say that we've had more deaths in Victoria and there are reasons for that. So I'm not going to enter into those sorts of: who said what, and who's to blame. The most important thing is that we learn from this, and I think that some of the things we've learned from COVID are that we need to be much more careful with control of infectious diseases, including the flu. Many, many older people died both inside and outside of aged care during the flu season. We've most probably learned a lot about making sure that people are safer both inside aged care and outside aged care.

Senator KIM CARR: Commissioner Patterson, there's not been one death—not one death—in a Victorian government controlled aged-care centre. All of the deaths in aged-care centres in Victoria have been in Commonwealth controlled aged-care centres. That's the case, is it not?

Dr Patterson : Senator, this is really outside my remit as Age Discrimination Commissioner.

Senator KIM CARR: I'm asking whether or not you think, in your work, that there's any evidence to suggest that discrimination against older people can be reflected in this pattern of mortality in aged-care centres.

Dr Patterson : I could go on forever debating this issue. It's not within my remit as Age Discrimination Commissioner. I'm very concerned about the treatment of older people inside aged care and in aged care in the home. But for me to make judgements without the evidence behind me—and we've got a royal commission looking into this in great detail—I don't think it's appropriate for me to make any further comment.

Senator Cash: And I think to speak there, Chair—yes.

CHAIR: You've got a straight answer on that and it's time to move on, Senator Carr.

Senator KIM CARR: In terms of age discrimination, do you think it's playing any role in the number of complaints that have been made to the Aged Care Quality and Safety Commission in relation to the standards of residential aged care?

Dr Patterson : I think ageism is behind this. It's pervasive within aged care, and within health care and within the community as a whole. One of the battles we have is to actually reduce ageism because it has implications for elder abuse, it has implications for care and it has implications for the way people are treated in the workforce. I think that's the essence of what's behind a lot of the things that are happening to older people, whether in care or out of care.

CHAIR: I've got just one little thing I want to clarify with Mr Tan, please, if you're still on the line?

Mr Tan : Yes, I'm still on the line.

CHAIR: Your evidence to the committee a moment ago was that the complaint statistics indicated a general level of increased concern about racism. Is that right?

Mr Tan : There has been an uptick, yes, of the numbers that have come through. But in terms of actual numbers, obviously, you need to get those from the president of the commission, who might be in a better position to give you the full details of the complaints that have come through.

CHAIR: Okay. It's true to say that the government has come out very strongly and made it clear that racism is not acceptable in Australia, and that no-one should put up with it. That's true, isn't it?

Mr Tan : Well, there has been very clear rejection by the leaders of this country. And I must say that it has been quite comforting to note in general, relatively speaking, a very good, strong sense of leadership in condemning racism in the last six months or so.

CHAIR: I've particularly admired the work of Minister Tudge on this front. But I just want to interrogate what you've said about this increased prevalence because if I look at the complaint statistics for the financial year that just ended, there were 403 complaints made under the Racial Discrimination Act. That's right, isn't it?

Mr Tan : From the figures that I have, it appears to be correct, yes.

CHAIR: And yet if I go back five years it was in fact more: there were 429. That's true, too, isn't it?

Mr Tan : It varies, yes.

CHAIR: And in the year after that, so four years ago, there were 409, which was more than the financial year just closed, correct?

Mr Tan : It appears to be so, yes.

CHAIR: I just wanted to put that on the record because, while there might be anecdotal concern—and of course everybody wants to make sure that Australia is a tolerant and welcoming place—I think the claim that there has been an enormous or drastic increase in the number of race discrimination complaints just isn't borne out by the evidence.

Mr Tan : Some people used the word 'surge'—and I think we can talk about semantics—but we don't use terminologies like that in terms of what in fact has been a surge. But we have noted an increase, a significant increase, in terms of numbers coming through that indicate there has been more activity in the racism area than in the past, and more so specifically directed at certain communities within our society.

But the numbers we have, according to my numbers, are very small because there are, in fact, limitations about where we take complaints from and how we take them, so they're quite serious about where it comes. The information flowing through about complaints comes through our state counterparts, that aren't really recognised—and that's important. But a lot of the activity that's been caught and registered, in terms of racist activities or racism that appears to have increased, has come from communities as well. I think that in the last year the government has taken note of that and the Prime Minister has made remarks attacking racism for the reason that there appears to be some indication that it's been an issue in the last six months.

Senator HENDERSON: I would just like to table a number of documents, Chair, if I could?

CHAIR: Have they been circulated?

Senator HENDERSON: I'm tabling them now for circulation.

CHAIR: Okay.

Senator HENDERSON: My questions are to the president. President, just for your information, the documents I've tabled are three different articles on the Human Rights Law Centre website and a tweet from the Australian Human Rights Commission. I think that's one that you're aware of, so I trust you'll be across this information. I want to raise an issue about human rights. Are you aware of this is a comment by the executive director of the Human Rights Law Centre, which is an organisation independent of government, in a media release published on its website on 11 September 2020:

Under Victoria's Human Rights Charter, the government can restrict other human rights in order to protect life and health but any restriction must be reasonable and the Government must use the lowest level of restriction to get the job done. There are serious questions about whether Victoria's curfew meets this test.

Do you agree with the comments by the Human Rights Law Centre, President?

Prof. Croucher : About the comments that were made, if that were applicable in the federal sphere, we would agree with that approach. There are clear criteria for limiting rights, in the federal sphere and for the Victorian government, which are in line with human rights principles.

Senator HENDERSON: I note your conditional response. You've said 'in relation to the federal sphere', but under section 11 of the Australian Human Rights Commission Act, one of the functions of the commission is to promote an understanding and acceptance, and the public discussion of, human rights in Australia, which means that you're not confined to discussing these matters just in Commonwealth legislation. So in light of that, can I ask you to be more specific about whether you agree with those comments by the Human Rights Law Centre?

Prof. Croucher : Thank you for drawing attention to our broad remit. I mentioned already that we do have a broad statutory mandate to promote an understanding and acceptance of human rights. The approach that is expressed by the Human Rights Law Centre is certainly consistent with that understanding and acceptance of human rights, and the conditions under which human rights may be limited.

Senator HENDERSON: The Human Rights Law Centre also said in this same article:

A curfew is a very serious restriction on human rights. It must be justified on strong public health evidence. Reports that the Chief Health Officer did not ask for the curfew and that Victoria Police were not consulted raises questions about the justification for the curfew under Victoria's Human Rights Charter and public health legislation. The Victorian Government should urgently review the need for the curfew—

and we now know the curfew is no longer—

against the standards in these laws.

Do you agree with that assessment?

Prof. Croucher : As I said in my opening remarks, the issues about specific measures have to be assessed at the point in time in which they're enacted. When measures are continued, there is a need for ongoing justification and ongoing scrutiny. And the difficulty with emergency measures which are not in the form of disallowable instruments, with which you would be very familiar, is that they are not open to the same kind of scrutiny. Without that specific evidence, one can't exactly say this is inappropriate or not. What we can agree with, absolutely, is the approach to answering those questions and the answers that might be produced would be dependent on that evidence provided at that point in time.

Senator HENDERSON: But, Professor, you haven't hesitated to make comment in relation to the arrest of a woman in Ballarat who was handcuffed by police in front of her family. I quote from you, in a tweet on 3 September:

Human rights are for everyone, everywhere, everyday. In times of crisis, such as this pandemic, our rights are as important as ever. While measures to control infection have required temporary limitations of our rights and freedoms, they must always be proportionate to the risk—and managed appropriately.

So, you were able to comment and make a judgement and assessment in relation to the conduct of Victoria Police in that matter. Just in light of that and in light of your broad mandate, and particularly section 11(g) and also (j), where on your own initiative it's open to you to 'report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights'. In light of your very broad mandate, can you provide a clearer response in relation to the restrictions imposed in Victoria, both in relation to the curfew and other restrictions on movement, on liberty and on the right to work?

Prof. Croucher : If those measures were measures of the Commonwealth, then they'd lie directly within our jurisdiction. Our functions are constrained in particular ways. When it comes to examining particular legislation or measures, then our jurisdiction is to examine enactments, and they're Commonwealth enactments, and the acts or practices that we can look at are acts or practices of the Commonwealth. So, when I talk about formally examining, I'm talking about those powers. My fellow commissioners and I are speaking about promoting an understanding and acceptance of human rights—that's what we do all the time. And the articulation of how you would examine the enactment, if it were a Commonwealth enactment, is precisely what we can talk about so that—

Senator HENDERSON: Well, I'm sorry to interrupt—

Prof. Croucher : the way set out by the Human Rights Law Centre is exactly the way that we would approach the question. But without the evidence that goes to it—and that was precisely the point that I made in my opening remarks—and with the measures, unless you're able to get to the evidence upon which they are based or that that evidence is freely available, then the accountability that's required as part of a liberal democracy is missing.

Senator HENDERSON: Professor, I have just referred to some commentary made by the Australian Human Rights Commission in relation to matters in Victoria, and I also note that the Australian Human Rights Commission will often defer to state human rights and equal opportunity commissions, including state legislative frameworks. You did that in your Respect@Work report, as just one example, where you undertook an extensive review of both federal and state legislative frameworks. I would put to you that it is very much open for you to be commenting and raising serious concerns about human rights issues in Victoria at the moment, including in relation to restrictions and prohibitions on movement, and other restrictions which arguably are in breach of human rights.

Prof. Croucher : We have provided those comments, as you say. In the Respect@Work, there was a comparison of the different legislation—it was serving a different function; it wasn't examining in the way that I think your question is suggesting, in terms of whether a particular enactment is a bad enactment or not. When it comes to things like the exercise of police powers in particular ways or the suggestion that wearing of masks would be a good measure, of course, we do comment about that. And thank you: I'm delighted you read my tweet on it. It's encouraging sometimes to know that your Twitter feeds are actually read by people who understand these things! So by all means we do promote an understanding of human rights. But when it comes to lack of formal examination of enactment, that's when our restrictions do kick in.

Senator HENDERSON: I wasn't asking for a formal examination of the legislation, I was asking for your view about the restrictions imposed in Victoria and the extent to which they may or are in breach of human rights. Could you just provide the committee with your view, please?

Prof. Croucher : Certainly. Insofar as the view is about how you would answer the question, you would do it in this way. You would have to consider if the restrictions are prescribed by law. Are they set out in some sort of legislative means? Are they necessary and proportionate to the evaluated risk? Are they the minimum necessary to address the emergency and in place for the shortest time needed to deal with the emergency? And you need to be transparent about the reasons why the restrictions on human rights are considered necessary.

An additional point, which picks up the comments in my opening remarks, is that the need for the restrictions must be assessed regularly, and the moment they're no longer necessary then they must cease.

Senator HENDERSON: I return to the Human Rights Law Centre and to the concerns it raises in relation to the Victorian restrictions. Do you agree with the concerns that have been raised by the Human Rights Law Centre?

Prof. Croucher : We have expressed concern with the extent of restrictions as a general matter, but we have not conducted a specific assessment of the nature of certain restrictions, their duration or otherwise because we do not have the evidence in order to support that conclusion. It's precisely the question of evidence to support the continuing need for the emergency measure that is the integrity point, the scrutiny point, that I was at pains to emphasise in my opening remarks.

Senator HENDERSON: So in light of your functions under section 11 of the Australian Human Rights Commission Act, given the importance of this issue, particularly in Victoria—I am a senator for Victoria—and the importance of human rights, and given that this is actually the subject of a Supreme Court action at the moment, would you undertake to better promote the understanding and the public discussion of human rights in this context?

Prof. Croucher : That's precisely what all of our commissioners have been doing during this time.

Senator HENDERSON: I'm not sure that I would agree with you, and I don't think, on the evidence, that we've seen a full discussion by the commission in relation to these matters in Victoria. Would you undertake to do so, pursuant to your mandate under section 11 of the act?

Prof. Croucher : In order to be able to assess the specific provisions to which you refer we would need to get to the evidence and we do not have the ability, as a federal commission, to compel that evidence. That is the remit of the state commission, and we have been providing assistance to the Victorian commission to help them in their analysis of the Victorian laws.

Senator HENDERSON: Well, there's a very substantial amount of evidence now on the public record, including in relation to the Supreme Court case that I mentioned. In light of the importance of promoting and understanding human rights, could I ask you to consider or reconsider your position so that particularly Victorians have a better opportunity to understand these issues, given your function?

Prof. Croucher : Thank you, Senator. We're always on the alert for the issues of concern across the nation in relation to promotion, understanding and acceptance of human rights.

Senator HENDERSON: I'm not quite sure that answers my question, Professor. I will say, for the record, that I think it's disappointing the commission has not dealt with these matters more proactively. These matters are of profound concern to many Victorians and, pursuant to your functions in section 11 of the act, I do believe that it's incumbent on the commission to better promote an understanding of these matters, given the importance of these matters in Victoria.

Prof. Croucher : Thank you, Senator.

CHAIR: Thank you, Senator Henderson. I will go to Senator Faruqi.

Senator FARUQI: I'm really sorry that we can't see each other because technology failed us today. But as they say, the show must go on. I have a few questions for Commissioner Tan. Commissioner, as you know, last week a number of Chinese Australian witnesses to a committee hearing were treated quite disgracefully by government Senator Eric Abetz, who effectively interrogated them about their national allegiances. You were quite critical of this in an SBS article on this matter. You were quoted as saying:

Treating people prejudicially based on race or ethnicity is contrary to Australian democratic values of equality, and to our fundamental human rights.

I take it from that statement, then, that you would consider Senator Abetz's behaviour as being contrary to our fundamental human rights. Would that be correct?

Mr Tan : I made a statement to this effect and it's been reported, in part, by the SBS. I'm happy to refer to that statement in full. It's not long. I'm not sure, Chair, if you think that's something that I could get your consent to do. Otherwise, I'm happy to table a copy of that statement, whichever might be the preference.

Senator FARUQI: Sure. I'm happy with the tabling. How long is it, Commissioner Tan?

Mr Tan : It's a three-paragraph document. It's been picked up, in part, by the quote you mentioned.

Senator FARUQI: Is that alright, Chair? If that's read out?

CHAIR: Can we read it first?

Senator FARUQI: Sorry?

CHAIR: Can we read it first?

Senator FARUQI: Okay, sure.

CHAIR: That's the usual process. Perhaps, Commissioner, you could arrange for that to be emailed to the committee, and we'll take it from there.

Mr Tan : I'm sure my office can organise for that to be emailed across.

CHAIR: Thank you very much.

Senator FARUQI: If you could answer my question, Commissioner Tan. Do you consider Senator Abetz's behaviour as being contrary to our fundamental human rights?

Mr Tan : Senator, on the issues which relate to the senator that you mentioned—the questioning—there are issues that relate to some concerns about national interests and national security. I've got great confidence in our capacity as a country, in terms of government and its people, to understand the issues there are around protecting our national interests and national security. Could I venture to say that my role in supporting that process of protecting the national interest is to ensure that we remain united and cohesive and to protect the human rights of people generally. Statements made by me reflect nothing more than a need for us to reaffirm our basic values—which is a strength of what we are as a country—of freedoms and human rights values. When, in fact, a situation pertains to a particular breach of any of those, it would be judged on its merits. But, for me, it's always that job of keeping in mind, keeping the focus on, keeping us on the straight and narrow in, the principles we believe in.

Senator FARUQI: Given that you are the Race Discrimination Commissioner, could you tell me what, in your view, you think are the impacts of questioning, like the one Senator Abetz subjected Chinese Australians to, on the Chinese Australian community in particular? Does it have any impacts?

Mr Tan : I think, generally, you might have to ask the Chinese community that question. Some sections of the community have expressed a view about this, and it's been reported. I think you will be able to get a better answer from the community than from me.

Senator FARUQI: But you are the Race Discrimination Commissioner.

Mr Tan : Yes, I am. But I don't speak for the Chinese community, as such. I don't enter into their minds, thinking about the issues that could offend them from time to time. Like any judge on the issues that come before me, what I believe is important to emphasise are the values we stand for.

CHAIR: Senator Faruqi, I really do think the commissioner has answered your question every way you've diced it. It might be time to move on.

Senator FARUQI: I don't think he has, but I will move on. Minister, this is a question for you. The government has not yet said anything about that questioning. The commissioner was also quoted in SBS as saying:

No Australian should have their loyalty to this country questioned or undermined because of their ethnic origin, nor should they be required to prove their loyalty

Do you agree with the commissioner's comments?

Senator Cash: I actually answered questions in relation to this in another committee—I think it was on Monday. I would refer you to the comments that were made in that committee. What I would also say, though—and again I made this comment in that particular committee—is there is no doubt that Australia is the most successful multicultural nation in the world and we should all celebrate that and be very proud. I also said in the committee on Monday that these questions really need to be directed to Senator Abetz.

Senator FARUQI: But you are part of the government, Minister.

Senator Cash: That is correct, and I've just said to you—

Senator FARUQI: You are part of the government, and the government has remained silent to—

CHAIR: Senator Faruqi, let the minister answer.

Senator Cash: I refer you to the comments I made on Monday. I also said to you that Australia is the most successful multicultural nation in the world. Of that, we should be very, very proud and we should celebrate that every single day. And I think, as the Prime Minister himself said, there is only one pledge that any Australian citizen should take and that's the pledge they take when they become an Australian citizen in terms of loyalty to Australia.

Senator FARUQI: Minister, I've asked you a particular question but I'll ask you another one.

Senator Cash: And I've provided my answer.

Senator FARUQI: No, you haven't answered that. I'll ask you another one. Why has the government remained silent on this matter that is toxic and harmful to the Chinese Australian community here—

Senator Cash: Again, I've provided you with my answer.

Senator FARUQI: So, you don't want to answer that question? Will you condemn—

Senator Cash: I've provided you with my answer.

CHAIR: You're not engaging with the answer, Senator Faruqi.

Senator FARUQI: You have an opportunity today to condemn Senator Abetz for his really toxic and harmful questioning. Will you do it and send a message to the multicultural community that this government actually cares about them?

Senator Cash: Well, I'm not going to go into everything policywise in terms of the multicultural community, because that was something that was dealt with in another estimates hearing. As I have again said—

CHAIR: And we don't have all day—the number of initiatives!

Senator Cash: Senator Faruqi, you know Australia is the most successful multicultural nation in the world, and that is something that we should all celebrate every single day.

Senator FARUQI: Minister, I also know that Australians are subjected to racism every single day and the government remains silent on that. But I will move on from that.

CHAIR: Senator Faruqi, we just directed the committee to the statements on the record from the minister about the importance of not accepting racism at any point in time. You have no evidence to support that. If you're going to mislead the committee, that is a very serious thing to do. Please move on.

Senator FARUQI: Chair, I'm sorry. With all due respect, the minister did not answer my questions, but I will move on.

CHAIR: The minister did answer your question. The fact that you don't like the answer does not mean she did not answer it. Please move on.

Senator FARUQI: Commissioner Tan, this year I read a Sydney Morning Herald article where you point specifically to an increase in white supremacist activity both locally and internationally. Obviously, that paints a very worrying picture. I'm sure you're also familiar with ASIO's evidence, which was provided to parliament in September, which stated that right-wing violent extremism now occupies up to 40 per cent of their counterterrorism caseload. Can you point to any other information that you may have directly received about increasing white supremacist activity?

Mr Tan : Thank you for that question. I think the authority that comes from Asia is a very strong authority. You must agree to that. ASIO have expressed strong concerns about right-wing, far-right extremism, then obviously, from our perspective, we do pick up issues in the communities that suggest that that's now a concern. For example, what we do with sharing stories of Australian Muslims here in terms of the concentration right across the country has, in fact, painted a picture of concern in the community about right-wing extremism as being a factor affecting their sense of belonging and their sense of security. So, the overwhelming suggestion by reports and from research that's been done by organisations leads us to conclude that there are a series of issues that we need to consider about the new challenges in this particular area.

Senator FARUQI: Commissioner Tan, when I asked the government what they're doing about white supremacy and far-right extremism, which was just a few weeks ago, and whether they would condemn white supremacist activities, the response from Minister Cash was that she would condemn both right-wing extremism and left-wing extremism. Commissioner, would you make such an equivalence; and does this have the effect of actually downplaying right-wing extremism?

Mr Tan : To some extent all extremism is of concern to us. It doesn't matter where it comes from, extremism on any spectrum is of concern to us. But, in reference to far-right extremism, ASIO itself has made it clear that it's a new phenomenon in terms of the upsurge of activities. It's better organised, more sophisticated and represents a new challenge. We obviously look at extremism right across, in terms of what we do to work in this field countering it. But we're giving some attention to this particular area of far-right extremism. That includes, for example, trying to improve the data collection about where incidents happen in this particular area, because, unless we get a fulsome picture of where the activities are and what the concerns are, we're unable to find solutions.

Senator FARUQI: Commissioner, you just said that you're concerned about all forms of extremism—and of course we all should be. But have you come across what is classified as left-wing extremism? What is it? Has ASIO raised a concern about left-wing extremism? And how do you classify left-wing extremism?

Mr Tan : You'd need to ask ASIO what it means by that. I known extremism from what I see, from my perspective, as activities that obviously harm the community and in terms of social cohesion, in terms of endangering people's sense of inclusion. As the minister said, we are a very successful multicultural community, and we need to protect and preserve that.

Senator FARUQI: I've been reviewing the AHRC annual report as well—the complaints statistics from 2019 to 2020, which were published last year—and I came to a very different conclusion than Senator Stoker. The complaints statistics were that 403 complaints were received under the RDA for 2019-20, and from what I could see, that was an increase of almost 40 per cent since 2017-18. So, my question to you is: has the commission had to dedicate more resources to processing racial discrimination complaints?

Mr Tan : That is a question that unfortunately is not within my remit, because it deals with administrative issues that are within the president's remit. So, perhaps I could refer that question to the president.

Senator FARUQI: Sure. President, could you tell us whether the commission has dedicated more resources to processing those complaints, since they've increased quite a lot?

Prof. Croucher : We have a team of people in the Investigation and Conciliation Service who manage our complaints. An increase in load may affect the ability to discharge everything within the same time frame. So, we have not added resources, as in staff, to that area. But an increase in complaints across the board will have an impact on the ability to handle them in a quick way.

Senator FARUQI: Did you ask for more resources during that period, to deal with those complaints in a more timely manner?

Prof. Croucher : Discussion of budget is always an ongoing issue.

Senator FARUQI: So, did you ask for more resources? That was my question.

Prof. Croucher : Not specifically. The question of our resources is a matter that covers all aspects of our work, including our complaints handling.

Senator FARUQI: I want to go back to Commissioner Tan. I think in the questioning from Senator Carr we talked about the increase in racism on Chinese communities during COVID-19 and increases in other racism, and I share those concerns. When was the last time the commission received dedicated funding for a national anti-racism strategy?

Mr Tan : The national intervention campaign or strategy was funded up to 2015, I believe, and from then on the resourcing has been decommissioned. Senator, I believe this question was asked by Senator Carr at the last hearing, and I think we took some of those questions on notice and did provide some answers to the Senate on the basis of that question that underscored how we in fact were self-funding the strategy from 2015 onwards.

Senator FARUQI: Yes, but I just want to be clear on that, because I don't think it was clarified to me. So, there has been no new money from 2015 up to this year for an anti-racism strategy—no new money?

Mr Tan : Yes, there are moneys but different statuses in terms of a budgetary allocation. No, it hasn't come through from there but, in terms of money allocation from partnerships that we have with different agencies and even some sectors of government for the level of support and programs and activities, yes, it has been there.

Senator KIM CARR: Commissioner Santow, in the commission's engagement with Australia's third Universal Periodic Review of human rights, your website indicates that you've undertaken an assessment of the implementation status of all the recommendations that have been made to Australia with regard to the second Universal Periodic Review, which was done in 2015. It says that, at this time, approximately 11 per cent of the recommendations supported by the government have been fully implemented and 80 per cent have been partly implemented and approximately nine per cent have not been. Given that we're short of time, I'm wondering if you could provide us with just a general assessment of each of those categories. Which recommendations have been fully implemented, partly implemented and not implemented?

Mr Santow : I might defer, initially, at least, to President Croucher, who leads the commission's work on the Universal Periodic Review.

Prof. Croucher : I'm very happy to take that question. Perhaps, given that you've alluded to shortness of time, the simplest way to do it is to send through to you and to the committee, through the Chair, the submission that the Australian Human Rights Commission has made to the third Universal Periodic Review. We submitted that in the last month, I think. Don't hold me to that but, it was recently. In annexure 2 of our submission, we detailed the 'implemented', 'not implemented' and 'partly implemented' assessments, which are reflected in those statistics. That, I think, will give you a clear indication of the answer required on that particular question.

Senator KIM CARR: Thank you. I've only got one question. That goes to the issue of the commission's attitude to threats of the freedom of the press in Australia, specifically arising from intimidation of journalists by police raids on their homes and threats of criminal prosecution which has been undertaken by the Commonwealth government in recent times. Do you have a view on that matter?

Prof. Croucher : The issue that was reflected in the Annika Smethurst matter, which concerned an AFP raid and the warrant under which that raid was undertaken, was scrutinised in litigation. The commission, seeing it as raising important issues of human rights and freedom of speech and the journalist's role in relation to freedom of speech, sought to intervene and was granted leave by the court to intervene, in that matter, because we saw it as raising important human rights concerns.

Senator KIM CARR: What about the matters related to the ABC, specifically those questions regarding the reporting on some military war crimes issues?

Prof. Croucher : As an intervention matter, the issues went to the width of the warrants, and that was the specific concern. As a procedural issue, a very important concern was that any such intervention under warrants was justified in an appropriate way, and the focus was on the scope of the warrants themselves. Whether it concerned the ABC or any other journalist, the issues were important ones that went to freedom of the press as an important aspect of free speech, and they were the ones that sat behind our choosing to intervene in relation to one of those matters. We intervene very cautiously, and we choose certain matters. We don't intervene in every single matter that possibly raises human rights, but we did choose, in this case, the one that was in the High Court.

Mr Santow : If I can add to the president's response there, we also contributed a written submission and gave oral evidence to the Parliamentary Joint Committee on Intelligence and Security, it's inquiry on press freedom. That also set out some of the general principles derived from international human rights law that we think should be better reflected in Australian law.

Senator KIM CARR: Thank you very much.

CHAIR: Senator Carr, do you have more for this session?

Senator KIM CARR: No.

CHAIR: Okay. I know Senator Chandler has some questions.

Senator CHANDLER: My questions are to the Sex Discrimination Commissioner, who I hope is on the line.

Ms Jenkins : Yes, I am.

Senator CHANDLER: Thank you, Ms Jenkins. The trans inclusion in sport guidelines drafted by the AHRC, in consultation with unnamed groups and organisations, contain the statement:

There is limited research examining the impact of testosterone on the sporting performance of trans women.

Do you concede that statement is now directly contradicted by the process recently run by World Rugby, which has produced its own transgender guidelines citing 49 scientific reports relating to this issue?

Ms Jenkins : Thank you, Senator Chandler. As you may be aware, the guidelines that were prepared and launched last year by the Human Rights Commission on transgender inclusion are a human rights document and are designed to provide advice to sporting codes on how to comply with their obligations under the Sex Discrimination Act. It's not a medical document, and so I'm not in a position to answer questions about medical roles in relation to transgender competition.

Senator CHANDLER: My understanding is that, despite the fact that both the AHRC and Sport Australia have refused to provide a list of who was consulted in drafting the guidelines, some medical and scientific experts were consulted. Are you now saying that these guidelines were drafted only to address legal concerns around the inclusion of transgender people and did not in any way address the scientific and biological reality of trans women playing sport against women on a playing field?

Ms Jenkins : I confirm we did consult a variety of medical practitioners with expertise in the field, including the chief medical officer at the Australian Institute of Sport, Dr David Hughes, to the extent that it related particularly to the application of the Sex Discrimination Act and what is known as the competitive sporting exemption. The laws specifically prohibit discrimination against people on the basis of sex and gender identity, but, as you know, there is a specific exception that allows discrimination on the basis of sex, gender identity and intersex status for competitive sporting activity where strength, stamina and physique are relevant. So, in preparing those guidelines, it was important that we consult, but it was not a matter for the guidelines to make declarations on how the medical advice would apply to a particular sport or how that exemption would apply. So it's in that context that we consulted quite broadly, including with medical experts, but it was not to come to a medical conclusion about that.

Senator CHANDLER: So what you're saying to me, Ms Jenkins, is that the medical and scientific experts whom you consulted with were only consulted insofar as the exemption is set out in the Sex Discrimination Act, and you did not in any way look more broadly at the impact on the fairness and safety of women's sport if women are required to play sport against biological men.

Ms Jenkins : As I've already said, the guidelines were designed actually at the request of sporting codes to understand how the Sex Discrimination Act operates and with an interest to understand how they can lawfully ensure that they're meeting their legal obligations to not discriminate. That was the purpose of the guidelines, and they have been used for that purpose. So that was the purpose.

Senator CHANDLER: If that's the case, why do the guidelines make the statement that there is limited research on the impact of testosterone on transgender people, particularly in a situation where, as I've just referenced, World Rugby have only recently come up with their own guideline, which references 49 scientific reports?

Ms Jenkins : Our guideline was released in June of 2019, and at that point, when those guidelines were released, that was the conclusion we found from our research.

Senator CHANDLER: What discussions have the Australian Human Rights Commission and Sport Australia had then about redrafting the guidelines to incorporate the scientific and medical evidence produced by World Rugby as part of its research into trans inclusion?

Ms Jenkins : The guidelines were only released last year. As you know, this year's sporting season has been severely disrupted and so it would not be normal practice that we would be reviewing them so early in the piece. That would be—

Senator CHANDLER: Not in a situation where you have previously said in the guidelines that there's limited research regarding the impact of testosterone on sporting individuals, and we now have a situation where there's a vast body of research developed by World Rugby?

Ms Jenkins : Senator Chandler, I remind you that this is guidance on how the Sex Discrimination Act works. It's not guidance on medical opinion, medical advice or medical research.

Senator CHANDLER: That's becoming very apparent to me throughout my questions to you. And it's quite concerning to me to hear this in a situation where these guidelines were originally published with the intention of providing guidance to sporting organisations around transgender inclusion at the same time that many people are raising valid concerns about the safety and fairness impact on women's sport, as you and I have previously discussed here many times before. Would the AHRC redraft your guidelines if they were found to be legally inaccurate?

Ms Jenkins : We would of course review our guidelines if they were legally inaccurate. But our guidelines are about the Sex Discrimination Act. I really appreciate your interest in women's sport, because in terms of my portfolio I am also really passionate that women are entitled to access places to play sport, to get equal opportunities and equal facilities. There are many things that we need to do to improve access for women's sport. But in terms of this discussion, these guidelines are just one of a suite of things that the Human Rights Commission does. It's not creating more rights. It's not changing any rights. They're just guidance to ensure that sporting codes can be inclusive and can make sure that people can participate in sport—that's every person, women and men, including transgender people.

Senator CHANDLER: You've said that these guidelines aren't changing any rights, but I will quote to you directly from the guidelines. They make it clear:

… participation in sport should be based on a person's affirmed gender identity and not the sex they were assigned at birth …

On the basis of that statement, the concerns that women have raised around having to play sport against biological men and the safety and fairness impacts that results in, can you really deny that you have taken away rights in this situation by putting together these guidelines?

Ms Jenkins : The Sex Discrimination Act prohibits discrimination on the basis of sex or gender identity, and those laws continue to apply. They've applied, particularly in relation to gender identity, since 2013, and the guidance is just based on the laws as they currently exist.

Senator CHANDLER: Does the Australian Human Rights Commission regard the right for biological women to access single-sex services and facilities, such as bathrooms and change rooms, as a human right?

Ms Jenkins : If we're still talking about the guidelines that we've discussed, we did look in practice at all of the different arrangements, including access to facilities. And we've definitely heard that everyone seeks access to privacy and to secure facilities, so that's an issue. But in terms of a particular requirement that you're describing, that's not something that is a specific human right.

Senator CHANDLER: I was hoping that we would consider this question more broadly than just in relation to sport, but are you saying that the AHRC does not regard the right for biological women to access single-sex services and facilities as a human right?

Ms Jenkins : If you're talking generally about whether there might be occasions where you would have single-sex services, the legislation absolutely permits that.

Senator CHANDLER: But not as it relates to sport?

Ms Jenkins : I'm unclear on what your question is.

Senator CHANDLER: My question is: does the Australian Human Rights Commission regard the right for biological women to access single-sex services and facilities as a human right? It's a yes-or-no answer.

Ms Jenkins : It isn't a yes-or-no answer. The Sex Discrimination Act prohibits discrimination, but it does provide particular situations where you can apply for an exemption and you can seek to have a single-sex service. That exists under the legislation, and that is the occasion where there are particular reasons why there might be a need for a single-sex service.

Senator CHANDLER: So you accept that there are genuine reasons why sport, for example, should be a single-sex service?

Ms Jenkins : That wasn't something that you asked, and that isn't how you asked—

Senator CHANDLER: I'm asking that question now, Ms Jenkins.

Ms Jenkins : Let me explain again—and I feel like I'm being repetitive, but I'm happy to do that. The legislation prohibits discrimination, including in the provision of goods and services, like sport. It prohibits discrimination on the basis of sex and gender identity. However, recognising particularly competitive advantages and disadvantages—or at least it seems that's why—there is an exemption specifically in the Sex Discrimination Act that relates to, and I can read it to you if you like, allowing discrimination for

… participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

So that does recognise the biological difference in strength, stamina and physique between people and it does allow for single-sex sporting activities. We all know, from day-to-day life, that there are mixed sporting activities and single-sex sporting activities; that provision in the law allows for that to occur.

Senator CHANDLER: I recognise that the law allows for that to occur. What I'm confused about—and I know that we're going over time so I'll leave it here—is the fact that there is a line in the trans-inclusion guidelines that specifically states that participation in sport should be based on a person's affirmed gender identity and not the sex they were assigned at birth. I don't think that's necessarily reconcilable with what you're saying today, but I'll put the rest of my questions on notice.

Senator THORPE: It's been an interesting morning and afternoon conversation; trans women are women. But I'll start with my question for Commissioner Oscar. Commissioner, thank you for the work you do for our people. In your view, what steps would need to be taken by the government to ensure that rights in the United Nations Declaration on the Rights of Indigenous Peoples are incorporated into the laws and policies of this country?

Ms Oscar : Thank you, Senator Thorpe. It's wonderful to hear you. That has been a call from the Indigenous community for quite some time—for this nation to acknowledge and include in the laws of this land the acknowledgement and recognition and response to the UN Declaration on the Rights of Indigenous Peoples. It is an ongoing matter of advocacy by Aboriginal and Torres Strait Islander organisations to governments within the Commonwealth and states for improved services and inclusion of Indigenous peoples in decision-making around issues impacting Indigenous Australians. So it is a matter that is ongoing.

Senator THORPE: Do you think that the government is on track to achieve this or is taking the right steps forward to ensure that this happens?

Ms Oscar : I think we can always be hopeful that we can make advances, as a country, in respecting and acknowledging, and improving the way in which we are inclusive of, Indigenous people's issues, the rights of Indigenous peoples and our aspirations on how we can do better in this country. As I said, that's a matter that's ongoing for Indigenous peoples and governments of all persuasions in our country.

Senator THORPE: Thank you, Commissioner. It's only taken 240 years so far, so I suppose we can wait a bit longer! I have another question, and it's around Black Lives Matter and deaths in custody. Commissioner, you wrote in response to the killing of Mr George Floyd by police:

Meanwhile, Indigenous people continue to die in our so-called justice system … it will take the courageous leadership of our governments to commit to systems reform and not think the change we need will happen through individual actions alone.

Can you talk me through what systemic reforms you think we need in this country to end Aboriginal deaths in custody?

Ms Oscar : Thank you, Senator, and may I say that Black Lives Matter is a global response to systemic racism in the justice system and, in particular, police brutality. Tens of thousands of people in Australia attended protests advocating for systemic reform of Australia's justice system to combat racism and advocating for an end of deaths in custody. Difficult decisions have had to be made, particularly during COVID-19, about restricting some basic human rights such as freedom of movement, association and peaceful assembly, including protests. Governments are working very hard, but actions can result in unjustified limitations or breaches of human rights. In noting the Black Lives movement and the protests, we have a right to protest about racially discriminatory policies and practices, and any limitations placed on this right need to be justified and proportionate. While protests present a level of risk during this time particularly, organisers, as I understand it, were very clear about safety and social distancing, and I'm not aware of any evidence that has established links between participation in the protests and COVID outbreaks, including those in Victoria. I mention this because of the attention and focus on the Black Lives Matter movement and the way in which advocates in our country rose to bring attention to deaths in custody and deaths at the hands of police in the USA.

With respect to police powers, there have been reports of over policing and of using powers under emergency declarations. Given that police have been granted wider powers, it is important that there are transparency, accountability and independent investigation of complaints during the pandemic and an end date for the increased police powers so that they do not become the new normal. Deaths in custody of Aboriginal and Torres Strait Islander people highlight the ongoing need for systemic and structural change to prevent Indigenous deaths in custody. I support full, independent and thorough investigations into the circumstances surrounding these numbers of unfortunate deaths in our corrections systems and in our justice systems.

Senator THORPE: Thank you, Commissioner. I'll leave it there. It was lovely to talk to you and see you briefly earlier.

Senator SIEWERT: My questions are to the Age Discrimination Commissioner, Dr Patterson. I actually have a lot of questions which I will put on notice but I will ask just a couple now. I wanted to go to the issue of residents in aged-care facilities being in probably the strictest lockdown of all of the people affected by lockdowns around the country. Many haven't seen their family and friends for a very long time. This was raised by the royal commission and in the report on COVID. I'd like to ask you what your thoughts are about best practice, because there are some facilities that have allowed ongoing visits, albeit with very strict controls. What would you consider would be best practice and why isn't it being done around the country?

Dr Patterson : My remit is about age discrimination. To actually talk about individual issues affecting older people in aged care in not an easy thing. Some of these issues really go to the heart of the quality and safety commissioner, others of them go to the management of aged-care facilities and other things go to other jurisdictions. Some conditions that are applied may have been more stringent here in Victoria than they may have been in Western Australia because of the lower level of community transmission, so it's very hard to say overall. But one of the things that is an issue is that, even within Victoria, some facilities run by the same company or not-for-profits have different rules, which seems odd to me. I think it's been very unclear.

It's been very difficult for relatives, especially when somebody's dying and they haven't been able to be with them. My heart goes out to all those people who have had to deal with their relatives being very ill and/or needing palliative care within an aged-care facility and they've not been able to hold their hands. That must be so distressing, and I don't think any of us can identify with it unless it's happened to us or to a loved one.

One of the things is to try and keep people safe, and people in aged care are the most vulnerable. Many of them have co-morbidities and numbers of co-morbidities and they're more at risk, as we know, even from influenza or from gastroenteritis, whatever else might go through an aged-care facility. Getting the balance right of protection and yet accepting and acknowledging their human rights to have contact with their family is very important. But I can understand the concern and fear that some facilities have when they've got a large number of people. We had 725 people here in Victoria. If you haven't been here, it has been quite challenging for all of us, let alone those caring for the most vulnerable in our community. I don't think it's an easy answer because it does depend on which jurisdiction you're in. It depends on the level of virus within the area, within the community, in that jurisdiction. There is no one answer for all of that. Peter Rozen, the QC from the royal commission, put it perfectly today when he said the new aged-care legislation should be based on human rights principles and should be brought in to override existing laws. I have kept saying that, really, human rights should be the total means through which we put anything that happens in aged care, or in aged care in the home.

Senator SIEWERT: Do you think that, for some older Australians in residential aged care, their human rights haven't been maintained through this process?

Dr Patterson : You have got to balance human rights against public health and against the health not only of the individuals in residential aged care but the staff who are working with them. That's a very fine balance. The vulnerability of people in aged care to a virus such as COVID-19 challenges the whole system. How do you get the balance right of protecting them, protecting the staff and making sure that their rights are adhered to? It's not an easy balance to achieve.

Senator SIEWERT: I accept what you're saying; I realise that. But we've seen some of facilities in the media, where they have managed to maintain peoples' human rights, allow access, as I said, under fairly strict rules whereas in others, it seems they're just cut off, had no contact, to the point where we've seen people getting very upset outside aged-care facilities. How is it that we can have situations where facilities have managed to at least maintain some contact and others haven't? Again I ask: has there been some discrimination or loss of human rights here because it was easier for a facility to make that decision, rather than actually put in what would be best practice for visitation?

Dr Patterson : You're inviting me to go beyond my remit. I was called 'senator' before and thought I had been recycled. But if I can just step back and say: when you look at aged-care facilities, it may be easier to maintain a semblance of normalcy in a very small facility. It may be different in a facility that can isolate people in a wing. Sometimes just the layout of an aged-care facility may mean that they have to do different things. I think it is very hard to say, overall, what everyone should do. I realise that some facilities, even in Victoria, run by the same agencies, have different rules because of the nature of their particular nursing home and the structure. As I said before, this is a very, very difficult balance between protecting the rights of the older people who are in there, protecting them from getting the virus, or if it's in there, protecting it from spreading versus the rights of them to have visitors. There is no easy answer and I hope that, as we look back on this, we come up with clearer guidelines. I do think there was a bit of a mess in the beginning, when people weren't getting clear guidelines, especially when we had such high rates of community transmission in Victoria.

Senator STEELE-JOHN: I want to take you to the last DRC hearing, where the New South Wales and Queensland education systems admitted in one way or another to failing to uphold the rights of disabled children to fully access inclusive education. As you'd know, article 24 of the CRPD outlines the right to inclusive education, and general comment No. 4 clarifies that states parties are obliged to de-segregate educational settings. I just wanted to start off by clarifying that we have a shared understanding of the intent of article 24 and general comment 4.

Dr Gauntlett : Yes, we have a shared understanding that Australia is a signatory and has ratified article 24, and general comment No. 4 is a very persuasive document and seeks to interpret article 24. It's difficult to get into specifics with you without going line and paragraph through each instrument. But I think we would say that we're probably on a similar wavelength regarding the importance of inclusive education in Australia and that it actually requires people with disabilities to be included in the classrooms of other individuals.

Senator STEELE-JOHN: But quite specifically, states parties are called upon to de-segregate their educational systems via processes such as the creation of an inclusive education strategy, as outlined in paragraph 40, to transfer resources from segregated special schools or special units to mainstream education environments, as outlined in paragraph 68. Are you aware of these relevant sections?

Dr Gauntlett : Yes. The Australian Human Rights Commission filed some submissions with the Disability Royal Commission relating to inclusive education. The submissions were filed on 19 December 2019, and we made a number of recommendations relating to inclusive education, such as that the Australian government incorporate the relevant recommendations of the CRPD committee in the reviews of the National Disability Strategy and the educational standards, with appropriate targets and monitoring of progress in implementing its obligation to provide inclusive education. That was recommendation 4 of our submission.

Senator STEELE-JOHN: Your remit obviously covers educational settings, and I wonder whether you could outline some of the challenges that have been experienced when attempting to deal with discrimination in those educational settings.

Dr Gauntlett : The disability education standards are being reviewed this year by the relevant Commonwealth department. I think it's the department of education. In a series of those reviews it's been revealed that gatekeeping practices can occur with people with disabilities such that reasonable adjustment is not accorded to them and that they have challenges accessing inclusive education. And unfortunately, particularly in rural and remote areas or where Aboriginal and Torres Strait Islander students are involved, there can be issues with discrimination. We're presently participating in the review of the disability education standards and we have a project that is before the Attorney-General's Department to review the disability education standards, the disability transport standards and the access-to-premises standards to see that they are effective in their operations. As part of that we're hoping to provide constructive suggestions to ensure that the disability education standards are fit for purpose and, in particular—because of the vulnerable nature of children who are affected by discrimination, given that a year in a child's life is so significant—to ensure that these children are able to access meaningful educational opportunities both now and in the future.

Senator STEELE-JOHN: Thank you. That'll do me.

Senator WATERS: I've got some questions for the Sex Discrimination Commissioner, Ms Jenkins. Firstly, a very big congratulations on your comprehensive Respect@Work report, which is an incredibly detailed program of reforms. The budget allocates $2.1 million to establish a Respect@Work council and also to produce resources and deliver a follow-up national survey. They're all laudable goals. But is $2.1 million a sufficient amount of resources to undertake all that work, in your view?

Ms Jenkins : Yes, it is. Firstly, I was really pleased that the Attorney-General was able to table our Respect at work report on 5 March. It became public at that point. I really welcomed that announcement and the support of those particular recommendations because, whilst, as you said, there is a range of recommendations not only for government but also for organisations, the particular ones supported by the budget are really central. The funding of those was done after the Attorney-General's Department spoke to us about what we felt the scope of work was that was required. So, yes, I am really pleased about that. In addition, I am really pleased with the interest from business and organisations about taking advantage of lessons in the report. There have been lots of activities since that time of people reaching out to us.

Senator WATERS: You've mentioned previously that insecure work can make employees less willing to raise harassment issues, for obvious reasons. Are you worried that the COVID recovery period will see a rise in unreported harassed us?

Ms Jenkins : I am concerned. It is unclear and people have been asking quite regularly what I think has happened over COVID in terms of sexual harassment. I have two observations at the moment and this is really anecdotal. One is that we are hearing—and I speak regularly with the eSafety Commissioner—about online harassment and abuse having increased—and the other is that because we are now heading into a period where security of employment and actually having employment is reducing. I do think that the need to maintain employment and not rock the boat will continue to be a big priority. That being said, historically, Australians have been reluctant to bring complaints anyway. The last survey said only 17 per cent of people who had been harassed actually raised a complaint. I think that is why the report asks more of employers and really puts that focus on prevention rather than waiting for complaints.

Senator WATERS: Yes, which leads me to my next question. Recommendation No. 10 talks about the need for all Australian governments to ensure that kids and young people receive school-based, respectful relationships education that is age-appropriate and evidence-based et cetera. In last year's budget, there was $2.8 million over three years announced to support Respect Matters, which is student education on respectful relationships. Not much of that was spent and the shortfall hasn't been carried over. Actually it has ended up with about only half that amount of budget allocation. Do you have any concerns about the lack of implementation of the program?

Ms Jenkins : I haven't been tracking what is happening but if I could give you some background to that recommendation. In the report, we were particularly looking at the drivers of sexual harassment and, as I think many people know, sexual harassment is driven by power disparity rather than sex and that gender inequality is the key power disparity but there are obviously other things at play. The recommendation is about broader gender equality. Much is the way with many social challenges, I did hear quite a lot of early education and almost to the kindergarten level. So the recommendations about the education—as you said, age appropriate—were about education on respectful relationships, and part of the general movement across Australia, which is welcomed, on looking at the drivers of violence, and education on actually workplace rights. By the time you get to 15-year-olds in the workforce, we have made a recommendation about educating on sexual harassment at work. I haven't got a comment in particular on the particular programs as they are occurring across the country.

Senator WATERS: Thanks, Ms Jenkins. One final question from me, and thanks to everyone for their patience. The report also makes a number of recommendations about the Change the course report, which of course addressed harassment and assault at universities. You've published two audits and a milestone report since that Change the course report. Can I ask what follow up work you have done since that milestone report and if you've got any other work planned in that space—in particular whether there are any steps that have been taken to test the self-reported information from universities, given that revelation about the University of Adelaide that's come to light.

Ms Jenkins : Thank you for that question. There are probably two particular things to note. One is that, in fact, on 1 August it was three years since the Change the course report looking at sexual harassment and sexual assault at the 39 Australian universities was launched. So we have, as we have done previously, written to the universities, and all of them have responded to us now with their feedback on their actions. We are almost ready, so we're expecting to upload those audits next week when we have got them all on our system. It has been a welcome way of continuing to monitor and really for universities to continue to engage in this issue. I particularly note that this has been a challenging year in terms of staffing for universities.

The other thing has been conversations I've had, particularlyabout respect at work, with a range of people in the university sector. I hosted one webinar that was aimed at academics and universities, and one of the speakers on that webinar, which is publicly available on our website, was Vice-Chancellor Brian Schmidt from the Australian National University; another was Professor Marian Baird at the University of Sydney. I've also been in conversations with other organisations, like SAGE, which is the science and gender equality organisation. So there has been absolutely active interest, which I'm really pleased with. I'm conscious of time, but, in particular, our recommendations about industry action was one of the core recommendations for a better way to address sexual harassment, and I think universities have engaged in that. So there is absolutely still work to be done, but I'm really pleased that that engagement has continued.

Senator WATERS: Thanks so much for your work, Ms Jenkins.

CHAIR: Thank you, Senator Waters. We are half an hour overdue for a break. Senator Henderson has begged for one minute.

Senator HENDERSON: Not begged!

CHAIR: Asked extremely politely! Make it very quick.

Senator HENDERSON: Thank you very much. I have just a couple of supplementary questions to the president, just touching on an issue we raised earlier. Professor, can you detail your concerns about the arrest of the pregnant Ballarat woman Zoe Buhler?

Prof. Croucher : Thank you. The concern is the same that applies in any situation where it appears that it was disproportionate to the matter in hand. But the step before that is the powers that are given in an emergency situation: what is the accountability for those powers? I think it's quite clear, and we all recognise, how severe and broad the measures have been, particularly in Victoria. Everyone, including the Victorian government, has acknowledged that, and it has certainly not been easy for Victorians. Dr Patterson referred to the fact she's in Victoria. Three of our commissioners have been housebound for months. So the concern is a question of proportionality, but the concern that I reiterated in my opening statement was accountability for the measures in the first place.

Senator HENDERSON: Just picking up on the issue of the curfew: three of your commissioners have been housebound due to the curfew and other restrictions. Would you be concerned, from a human rights perspective, if Australians were prevented from leaving their homes, as occurred under the curfew in Melbourne, to stop the spread of a pandemic, if such a measure were not supported by any medical or health evidence?

Prof. Croucher : That's a speculative question. The question would always be, 'What is the evidence to support the decision?', and being prepared, in an accountable liberal democracy, to put that evidence forward so that people understand the reason. But the virus is one that is overtaking Europe again, which is really quite distressing, and the breakdown of measures of that kind alarms us very much.

Senator HENDERSON: But we talked about proportionality before, and you specifically mentioned that. If a measure were imposed which wasn't justified and therefore was not proportionate, would you be concerned from the human rights perspective?

Prof. Croucher : Of course. The proportionality must be evidence based at the point of time at which the issue is being considered, and that's the important issue here, I think: evidence, time of consideration, severity of measure.

Senator HENDERSON: Thank you

Prof. Croucher : Sorry—and reviewable. Forgive me for adding that to it.

Senator HENDERSON: Thank you very much, Professor. Thank you, Chair.

CHAIR: Thank you, Senator Henderson, and thank you, officers from the Australian Human Rights Commission. We appreciate your evidence today. We will suspend for the next 15 minutes, resuming at—

Mr Tan : Senator Stoker, it's Chin Tan. Can I just follow up a point of order. In earlier questioning by Senator Faruqi, I referred to a statement which has now been circulated, and I seek your guidance as to whether in fact I should now tender this document.

CHAIR: When we receive it, we will take a look at it, and subject to it being appropriate, which I'm optimistic it will be, we can table it at this end. How does that sound?

Mr Tan : I'll leave it in your good hands, then.

CHAIR: Thank you very much, Mr Tan. Thank you, one and all. We will suspend.

Prof. Croucher : Chair, if I may: thank you for putting up with all the technology. I think it's been challenging for all of us, but we always welcome the questions, and we look forward to continuing our very open conversations with all the committee.

CHAIR: Thank you for your positive engagement. I think the tech problems were at our end.

Proceedings suspended from 15:51 to 16:11