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Legal and Constitutional Affairs Legislation Committee
24/02/2014
Estimates
ATTORNEY-GENERAL PORTFOLIO
Australian Human Rights Commission

Australian Human Rights Commission

CHAIR: I welcome officers from the Australian Human Rights Commission.

Senator SINGH: I wanted to ask you some questions in relation to the appointment of Mr Wilson, the new Human Rights Commissioner. Was the appointment of Mr Wilson carried out in accordance with the normal procedures—

Senator Brandis: Professor Triggs has just indicated to me that, before we get into the body of the questioning, she would like to make a short statement.

CHAIR: Yes, I am sorry—I should have asked. It is good to see you in the flesh, so to speak, Professor Triggs. We have had a couple of meetings in the past couple of weeks by teleconference. I was remiss in not asking you if you had an opening statement.

Prof. Triggs : Thank you, Chair, and I do apologise, Senator Singh, for cutting you off. I will very much welcome your questions in a moment or two. But I did want to take a couple of minutes of the committee's time to make some very short remarks. One of the developments since our last appearance before this estimates committee that I did want to explain to you and talk to you about is the announcement of a third national inquiry into children in immigration detention. It has been 10 years since our previous landmark report on the issue and we have seen many positive developments in that time frame, the high point of which was the removal of all children from immigration detention in 2006.

The situation has deteriorated significantly and, in April 2013, the number of children in closed immigration detention reached levels unprecedented in Australia's history—over 1,600 on 30 April last year and reaching nearly 2,000 by July. At that point, the commission decided to plan a third national inquiry, the second being one held by my predecessor, the Hon. Catherine Branson, on the treatment of children and individuals suspected of being people smugglers. That had a very successful outcome in 2012 when—in fact before the final report was produced—the government moved to change its policy in relation to techniques for determining the age of children.

With the very high numbers of children in detention, the commission began to plan this third inquiry, which has just started. Of critical importance is the fact that, while numbers in detention are rather lower than they were in July last year—there are now about 1,000 children in mandatory detention—the amount of time that children are remaining in detention appears to be growing. This is a particularly serious because the length of detention has a significant impact on the children. We aim for the inquiry to be completed by September-October this year, and we hope to report to the government within that time frame.

Another point that I wanted to raise was that, as you will be aware, we have now appointed a seventh commissioner, Tim Wilson, to the Human Rights Commission. He is in his fifth day at the commission—his appointment was finalised on Monday. Tim is going to build on the work that the commission has done in protecting human rights and fundamental freedoms, and he will take on the role as spokesperson for our work on LGBTI issues, among many other issues. We have given Tim a very warm welcome. We are used to having a robust discussion in the commission, and we know that Tim is going to add to that, so we look forward to it.

The last substantive point I wanted to make is that the commission's priority over the next year or so will be to engage more directly with business, and to do so in ways that are across the commission. We are well aware of the difficulties that small to medium businesses face in meeting some of the human rights standards, particularly anti-discrimination law. We hope to put our resources into responding positively to encourage small to medium businesses to meet the standards, but to do so in a way that engages with a minimum of red tape.

We would also like to explore some new ways of achieving human rights outcomes. One of these is to look at the role of codes of conduct rather than more legalistic approaches of exemption from standards, particularly with regard to those with disabilities. With those brief comments, thank you very much for your indulgence. We very much look forward to working with the committee in the future.

CHAIR: Thank you very much, Professor.

Senator SINGH: My questions relate to the opening statement. Professor Triggs, I will ask you about the new inquiry into children in detention in a moment. But first, I want to ask about the appointment process for Mr Wilson, the new Human Rights Commissioner. Was that appointment process carried out in accordance with the normal procedures employed for the appointment of human rights commissioners in the past?

Senator Brandis: Mr Wilson's appointment was made in accordance with the procedures set out in paragraph 2.6.6 of the Australian Public Service Commission's merit and transparency guidelines for merit based selection of APS agency heads and APS statutory office holders.

Senator SINGH: So that process would be the same as something that was raised by Mr Tim Elliott in his article in the Good Weekend magazine in the Age which said:

Wilson says "George" simply rang him and "asked if I was interested".

Does that fit the process that you have just described through the Public Service Act?

Senator Brandis: It is correct. Yes it does.

Senator SINGH: Does Mr Wilson—

Senator Brandis: You will have to stop interrupting me in mid answer.

Senator SINGH: You said, 'Yes, it does.' So I am moving on to the next question.

Senator Brandis: Let me finish my answer. Yes, it does. Mr Wilson was approached by me by a telephone call.

Senator SINGH: He was approached by you. Is it right that Mr Wilson calls you George?

Senator Brandis: Yes, he does. That is my name. Just as you call me George, Lisa.

Senator SINGH: '…"George" simply rang him and "asked if I was interested".' That is obviously not the process that has gone on in the past under the previous government, is it? Isn't the process that has been used in accordance with the Paris Principles?

Senator Brandis: I do not know what procedures were used by the previous government to appoint people to the Human Rights Commission. I do know that the previous government did not appoint anyone as the Human Rights Commissioner after the position lapsed with the retirement of the previous president, Justice Branson, in the middle of 2012. I do know that throughout the entire lifetime of the Labor government there was not a full-time Human Rights Commissioner. It was either a part-time position jointly held with the president or not filled at all. But I can tell you, as I said in my previous answer, that the procedures set out in paragraph 2.6.6 of those guidelines were observed.

Senator SINGH: Did you publicly advertise for the position that Mr Wilson has been given?

Senator Brandis: No.

Senator SINGH: You did not advertise?

Senator Brandis: No. That is not required by those guidelines.

Senator SINGH: Did you consider other candidates?

Senator Brandis: I turned my mind carefully to the question: who would be the best person for the job? You have to understand, Senator, that one of the promises that the coalition made when we were in opposition was to appoint to the Human Rights Commission a freedom commissioner. When we were elected I took some advice from my department as to how the appointment of a freedom commissioner might be managed. The most obvious way would be to amend the act so as to create a position described by those words. But, given the hostility of the Labor Party and the Greens towards the idea of a freedom commissioner and given the government's wish to move swiftly on this, I asked some advice from the department about ways in which an objective could be achieved other than by legislation. One of the options that was presented to me by the department was to fill the position of human rights commissioner which had laid vacant for nearly 18 months—or more than 18 months by the time Mr Wilson was appointed—and request the appointee to the human rights commissioner position to concentrate on issues of personal freedom, which is precisely what I have done.

Senator SINGH: What is Mr Wilson's salary?

Senator Brandis: I do not know. I am told it is about $320,000.

Senator SINGH: It is $320,000?

Senator Brandis: That is what commissioners receive. That is what the Remuneration Tribunal has decided.

CHAIR: It is not much compared to what government relation officers got in the NBN, when Mr Mike Kaiser was appointed on the say-so of the minister.

Senator SINGH: Chair, I have questions. I have not quite finished.

Senator Brandis: Being a government which is respectful of human rights in reality, not merely in our rhetoric, we do regard members of the Human Rights Commission as having a very important role. We do not set the salary; the Remuneration Tribunal sets the salary. But I do not consider it to be particularly excessive.

Senator SINGH: So it is a $320,000 salary and the position was not advertised and you did not consider other candidates. Is that correct?

Senator Brandis: No, that is not correct. The first part is correct—the salary set by the Remuneration Tribunal. Regarding the second part of the question, that we did not advertise, we did not advertise because we followed the procedure set out in paragraph 2.6.6 of the guidelines to which I have referred, which do not require advertisement. And, regarding the third proposition, that I did not consider other candidates, I just told you I did consider other candidates. You must have misunderstood my answer. You asked me whether I considered other candidates and I said, 'Yes, I did.'

Senator SINGH: On what date did you announce the appointment of Mr Wilson?

Senator Brandis: On the afternoon of 17 February, after his appointment had been made.

Senator SINGH: Professor Triggs, when were you made aware of Mr Wilson's appointment to the position? On what date?

Prof. Triggs : I do not think I recall that date. I would have to take it on notice, to be perfectly honest. It was certainly before Christmas.

Senator Brandis: I did advise Professor Triggs of the cabinet's decision to make a recommendation to Her Excellency the Governor-General when the cabinet at its December meeting decided to make that recommendation. So Professor Triggs was not waiting until 17 February, if that is what you are getting at.

Senator SINGH: Senator Brandis, in a press release that you put out on 17 February in relation to Mr Wilson's appointment, you wrote:

Mr Wilson will discharge all of the functions of Human Rights Commissioner, which is the second most senior position within the Australian Human Rights Commission.

On what basis do you make that statement—that he is the second most senior within the Australian Human Rights Commission?

Senator Brandis: By reference to the act. The act provides for a president—

Senator SINGH: Yes, it does.

Senator Brandis: It provides for the Human Rights Commissioner. It provides for other commissioners. It also provides, uniquely in respect of the Human Rights Commissioner, that in the absence of the President the Human Rights Commissioner may exercise or discharge the functions of the president. I take that to be a statutory indication that the Human Rights Commissioner is the next most senior officer after the President.

Senator SINGH: So in your press release, where you said that Mr Wilson will be the second most senior in the Human Rights Commission, you only meant that to be in a case where Professor Triggs is absent?

Senator Brandis: Sure.

Senator SINGH: Because that is not implied in your press release. What is implied is that he is the second most senior within the Human Rights Commission, full stop. And that is not in the act.

Senator Brandis: I have read the act. I have—

Senator SINGH: I have the act here.

Senator Brandis: These days I seem to read little else but the act. I take it that the identification of one particular commissioner, that is the Human Rights Commissioner, above all the other commissioners as the only commissioner who may act for the president in her absence establishes a hierarchy in which the Human Rights Commissioner is next to the President in seniority. I do not think it is a big deal, by the way, but that is the way I read the act.

Senator SINGH: I am just trying to understand why you made that statement in your press release, when it has no basis in legislation—

Senator Brandis: That is not my view.

Senator SINGH: other than what you take it to be—

Senator Brandis: That is my construction of the act.

Senator SINGH: and other than only when the president is absent.

Senator Brandis: I am very well acquainted with the art of construing acts of parliament and that is my interpretation of the meaning of that section of the act.

Senator SINGH: In lieu of the President not being absent, which she would not be most of the time—if she is actually in the Human Rights Commission—would Mr Wilson be more senior than the other commissioners?

Senator Brandis: Obviously, I think—just as the Deputy Prime Minister is the second most senior minister in the government. Even though Mr Truss is sworn in as a portfolio minister—Deputy Prime Minister, I believe, is a courtesy title—there is no doubt that he is the second most senior minister in the government and he acts as Prime Minister when the Prime Minister is away.

Senator SINGH: But Mr Wilson is not the deputy president of the Australian Human Rights Commission. There is no such title as deputy president.

Senator Brandis: That is right—nor is he the Deputy Prime Minister. I am using an analogy.

Senator SINGH: Yes, but analogy and what is based on legislation and in the actual act are two different things, Attorney-General.

Senator Brandis: I do not agree with you. You obviously have your own views of this matter and we will just have to agree to differ.

Senator SINGH: It is not about views; it is about fact—and how the new appointment of Mr Wilson will be situated within the Human Rights Commission. According to your press release, you are saying that he is the second most senior—

Senator Brandis: I think he is. I think that is what the act, by identifying the Human Rights Commissioner as the only commissioner who may act in the place of the President, necessarily suggests. But, that having been said, I am quite familiar with the Human Rights Commission and I know the way it works. I think it is a very, if I may say so, egalitarian institution. In its everyday life I do not think, for example, Mr Wilson's teabags will be located first in the queue of teabags in the tea room, if that is what you are getting at.

Senator SINGH: Section 8A(2) says the President is the senior member of the commission. There is no section within the act that says the Human Rights Commissioner is—

CHAIR: Was there a question?

Senator Brandis: I understand the view you take, Senator Singh. I think it is wrong, but nevertheless I think this issue has been well and truly ventilated. You read the act one way; I read it another way.

Senator SINGH: Are you aware of the Paris principle—

CHAIR: Senator Singh, we are here for questions, not for debate as well. Are there questions?

Senator SINGH: Senator Brandis, are you aware of the Paris principle in relation to the status of national institutions?

Senator Brandis: I am aware of it, yes.

Senator SINGH: Are you comfortable that that principle has not been applied with the appointment of Mr Wilson?

Senator Brandis: Without conceding your point, I would point out to you that the Paris principles, so-called, are obviously not part of Australian domestic law nor are they part of Australian domestic practice. Insofar as there is an inconsistency between these Paris principles, which are a series of international guidelines, and the Australian Public Service merit and transparency guidelines, of course the Australian Public Service merit and transparency guidelines would prevail.

Senator SINGH: They are internationally agreed standards for national human rights institutions. That is the specific nature of the principle.

Senator Brandis: I think a lot of the bedevilment of the discussion in this area arises from the fact that there are some people—you are obviously one of them—who think international practices or conventions prevail over Australian domestic law. They do not.

Senator SINGH: Professor Triggs, has there ever been ranking in the commission of commissioners other than yourself?

Prof. Triggs : Not to my knowledge.

CHAIR: I take it the provision in the act has been there for a long time.

Senator Brandis: I cannot tell you when that provision was placed in the act. I do not know the answer to that question.

CHAIR: There has always been a provision that, when the President was not available, someone else filled that role.

Senator Brandis: It is a somewhat arid dispute.

CHAIR: Yes, I agree with that!

Senator Brandis: If only as a matter of courtesy or protocol, I would have thought that the designation of the Human Rights Commissioner as the only commissioner who may act for the President suggests a natural precedence. That having been said, I do not think it matters very much.

Senator SINGH: Professor Triggs, has the immigration department granted you access to the detention centres for you to carry out the work for this inquiry?

Prof. Triggs : The department has been very cooperative and helpful in helping us to arrange the visits to the Australian detention centres where children are held, most particularly of course Christmas Island, which I will be visiting in the next few days. In relation to the others around mainland Australia, they have been very helpful in facilitating those visits, settling dates and ensuring that we have interpreters and so on with us. They have been very open in that regard. However, the position is very clear—and has been with the former government and the present government—that my jurisdiction does not extend to Manus Island or to Nauru.

Senator SINGH: Have you sought for the department to allow you to go to Manus Island and Nauru?

Prof. Triggs : I have—again, from both the former government and the present government. The answer—from the first government, orally, and from the current government in a clear letter—was that they do not believe that my jurisdiction extends. We will, through the inquiry, nonetheless be looking at the circumstances in which children are selected for transfer to Nauru. We will also be looking at the conditions in which those children will be held. We are considering complaints from families and children who are on Nauru. I, as President, am exercising a jurisdiction to those matters. But I do not have the jurisdiction to go there without the facilitation of the Australian government and, most particularly, without the consent of the two sovereign countries concerned.

Senator SINGH: Do you think you can still do a thorough inquiry into the health and wellbeing of children in detention if you are not granted full access to those facilities on Manus Island and Nauru?

Prof. Triggs : There are no children on Manus Island. As far as Nauru is concerned, I am of course troubled by that aspect of the inquiry. Clearly I will not be able to have the same level of evidence that I will have when I go with a team including a psychologist, a psychiatrist, translators and experienced members of the commission. That will clearly have an impact on the nature of the evidence. However, we are also holding at least two and possibly three public hearings, and I am hoping that evidence will be produced at those public hearings from those people who are able to speak out about the conditions on Nauru. It is not ideal, but I do not think it has a serious impact on the credibility of the inquiry as a whole.

Senator Brandis: Can I add to Professor Triggs's answer. Of course the government is very concerned that there are so many children in detention. When the Howard government went out of office in 2007, there were no children in long-term detention. There were two or three being processed through the system—so, technically, they were in detention. But, to all intents and purposes, when the Howard government went out of office, there were no children in detention. This is a huge humanitarian problem entirely caused by the government of which you were a member.

Senator SINGH: You are in government now, Senator Brandis.

CHAIR: We will have to move on to Senator Seselja now.

Senator SESELJA: I have two questions that follow on from the discussions in relation to, firstly, children in detention and, secondly, the new Human Rights Commissioner. I will start, just following on from your point, Senator Brandis, with children in detention. The question is to Professor Triggs. You spoke in your opening statement about the large increase in—in fact, I think you talked about the record numbers—of children held in detention. I think the peak in July last year was 1,992. Going back—and it touches on the point that Senator Brandis made—when the Howard government left office, there were no children in detention, which was a great result. We then saw a steady increase. There have been concerns raised and you have addressed some of these, I think, in the media, but I am keen to pursue them here. Once concern raised was that there was an inquiry done—about a decade ago, I think you said—and then the Howard government very much got the issue under control. We saw no children in detention and we saw virtually no boats arriving. Then we saw a very large increase in the number of children in detention. Yet, during all of that period, we did not see an inquiry into children in detention—despite the fact that we had these record numbers. Are you able to give some rationale for why that would not have occurred several years ago when we saw the problem getting worse and worse?

Prof. Triggs : Senator Seselja, with great respect, that is simply not the case.

Senator SESELJA: Which part is not the case?

Prof. Triggs : We held an inquiry, the report of which was called An age of uncertainty—inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children. I have brought a copy with me. The inquiry was conducted over 2011 and 2012 by my predecessor, as I said, the Hon. Catherine Branson. That was a major report and it was successful in the way the first one was. Just as the then government released children in detention at least in part as a consequence of that first report, in relation to the second one—

Senator SESELJA: That was specifically into children in detention—that was the purpose of the report?

Prof. Triggs : It was into children whose age was being determined by the use of wrist X-ray technology.

Senator SESELJA: But that is a very specific point. That was into one particular aspect of children in detention.

Prof. Triggs : It concerned a considerable number of children and was taken up, as I said, by my predecessor. That was the second inquiry.

Senator SESELJA: But it was not the kind of broad-ranging inquiry that we saw back in 2004 into children in detention and that we are now going to see?

Prof. Triggs : It was not all children in detention; it was a certain group of them. Certainly it was more narrow than the first inquiry and now this third.

Senator SESELJA: That goes to my point. I just want to explore that. We did see a pretty large increase in the numbers—and it was not just at the back end of the Gillard-Rudd government. You highlighted the 1,992 in July 2013, but by January 2011 it was over 1,000. So we had seen it go from zero to over 1,000—a pretty rapid escalation. Is there a reason why the Human Rights Commission did not see the need to have a broad-ranging inquiry into children in detention at that time?

Prof. Triggs : I think that is a fair question and the answer is quite a simple one: I did want to hold an inquiry as a result of the escalating numbers of children. It was of great concern to the Human Rights Commission. But we were well aware that we were moving into an election period. As you know, the poll date was announced considerably in advance of the election. Although I knew the numbers were rising—and of course the Human Rights Commission would, in the normal course of events, want to hold some sort of inquiry into these rising numbers and the conditions of the children's detention—I felt, and it was my judgement, that it would not be appropriate to hold that inquiry in an election year. Hence, we waited until the election of the new government and we waited five months into that new government to see what was happening. But, as the figures for the period of detention for children rose and as the numbers being released into community detention declined, I felt it was now time to go forward with that inquiry.

The other purpose is that we had always planned—I believe even before I became president—to do a 10-year review if children were still in detention. Those were the reasons, but I do understand the perception that might have suggested that we should have held an inquiry earlier.

Senator SESELJA: You talk about perception, and I think that is what I am getting to because even in your answer you say it is a result of the election. Yes the numbers were higher when it was approaching the election but they had rapidly escalated even by the end of 2010, when there were around 1,000 kids in detention. There had been a 2010 election; we had moved into another year, yet there was no inquiry. Perhaps you have already addressed this, but it seems to me that it does create the perception, and reinforces the perception, that these inquiries occur when there is a coalition government and at a time when the coalition government is actually getting things under control, when what we saw under Labor was a rapid escalation of the problem and yet no broad-ranging inquiry at the time.

Prof. Triggs : It is not really quite as simple as that, because over that period the commission was very heavily engaged in making submissions to relevant parliamentary inquiries, we were intervening in High Court cases—obviously, at the discretion of the court— and the president, both my predecessor and I, were reporting frequently to parliament through the Attorney-General on the conditions of children and others in detention. There was a great deal of work. It might be said that it has dominated the law and policy section of the commission for a very long time. A lot of work has been done by the commission. A great deal of resources are required to engage in an inquiry. My predecessor, having been engaged in an inquiry on the children and the means of determining their age, was engaged with doing that. It was obviously not appropriate at that stage to have another inquiry on children generally. As president, I have made the decision that one was required. But I think it needs to be understood that the commission has worked for 12 or 14 years consistently on this matter, consistently reporting to parliament, and now wants to consolidate that work with the third inquiry.

Senator SESELJA: Senator Brandis, I have a question relating to the appointment of Tim Wilson. The left has been critical, in parts, as you would expect, but I think there are many others in the community who would congratulate you on the appointment, and I do. Given that we hear one side of the story told, I am interested if you could briefly point out why you think it is important that we have someone coming in who has a focus on freedom of speech and these other freedoms that you believe have not been as well addressed as they could have been in recent years by the commission.

Senator Brandis: Thanks, Senator Seselja, but I will not intrude too much on the committee's time. I could spend an hour answering your question, but I will not do that. You say, by the way, that some but not all on the left criticised Mr Wilson's appointment. I think it is a very important point to make because there are many people, or bodies, who are thought to be on the left wing of politics who actually praised it, including to my mild surprise The Age in Melbourne. It was well received right across the political spectrum, although it was also criticised by some of the more rebarbative figures on the left.

I think it is important—I know that Professor Triggs, with whom I have had the benefit of several discussions, shares my view—that the Human Rights Commission focus on the full variety of human rights. I have been increasingly concerned for some years that the Human Rights Commission has been focused almost exclusively on one particular, though important, set of rights—antidiscrimination issues—and not sufficiently focused elsewhere. If Australia wants to have an antidiscrimination commission, not a Human Rights Commission, then we could have chosen to do that. We could have chosen to have an anti-discrimination commission, as some countries do. But Australia, 30 or more years ago, chose, in my view wisely, to have a Human Rights Commission in which antidiscrimination would be one of the most important things that it deals with but not the only thing that it deals with. The Human Rights Commission Act mandates the Human Rights Commission to have regard to a variety of international human rights instruments, but most particularly to the ICCPR, the International Covenant on Civil and Political Rights, which of course is a charter for freedoms as well as for equality. In particular, article 19 of that instrument talks about freedom of speech, freedom of the press. We know that these are not absolutes; nevertheless, they are presumptive and very important rights.

This is not a criticism of Professor Triggs, who is relatively new in the job and who has been extremely helpful to and cooperative with me in pursuing this endeavour, but I wanted to get a greater degree of focus, a renewed focus, on freedoms. There is no human right more fundamental than the right to freedom, and by appointing a freedom commissioner to look at that side of human rights I sought to redress the balance. I am very glad that Professor Triggs has strongly and very publicly endorsed the new government's decision in that regard. As to Mr Wilson himself, who I have known over the years—he has often been a witness before this committee, in fact—

Senator WRIGHT: Chair, I would like to make a point of order. We understand that there are many people who have questions to ask of the minister. It seems to me that most of what you have said, Senator Brandis, is on the public record. You have the ability as a minister to speak to the media.

Senator Brandis: I was asked a question and I am just answering it.

Senator WRIGHT: I do not know that to allow you to go through information that is already eminently out in the media is an appropriate use of the government time to ask questions. This is actually about determining and getting information that we otherwise cannot have.

CHAIR: Senator Wright, you have raised your point of order. There is no point of order.

Senator SESELJA: It is not just for the opposition.

Senator WRIGHT: It is for the opposition and other members of parliament.

Senator SINGH: Not in the main, sorry.

Senator SESELJA: It has been, in the main. We are entitled to ask questions.

Senator SINGH: The intention is for the opposition senators to ask questions, not just you.

Senator SESELJA: You may not like all of the answers you get, but—

Senator WRIGHT: The minister has other opportunities to make his point. This is our opportunity.

CHAIR: I have ruled that there is no point of order. I have asked the minister to conclude. Can I just say that the minister's soliloquy, almost, is not helped by the fact that when asking questions senators—and I am not talking about Senator Seselja here—have a long statement of political principle before they eventually get around to a question.

Senator WRIGHT: His whole display has been a soliloquy.

CHAIR: You are right about the minister, but we will apply the same rules elsewhere. Minister, could you conclude your answer.

Senator Brandis: I was in the process of bringing my answer to an end, as a matter of fact. As I said, in relation to Mr Wilson himself, I selected him to be the freedom commissioner because I am sufficiently aware from statements he has made on the public record, and from his contribution before this committee and in other forums as well, that he has a strong philosophical grasp of freedom issues and that he is a very capable advocate for those issues. I think having that countervailing point of view on the Human Rights Commission will be extremely beneficial to the commission.

CHAIR: And I do not think anyone would dispute that, Minister.

Senator Brandis: They are. Some people do.

CHAIR: We will go to Senator Siewert.

Senator SIEWERT: I would like to ask Mr Gooda some questions. I also have some questions for Mr Innes and for Ms Ryan. Mr Gooda, we heard comments this morning—I know you were here in the room—that the cutting of funding to legal centres and to the provision of policy and advocacy will not have an impact on reducing the incarceration rates of Aboriginal and Torres Strait Islander peoples. Is that something that you have provided any comment on or have looked into? In other words, how important is that funding in relation to addressing incarceration rates?

Mr Gooda : I have provided comment about the role of advocacy within the Aboriginal and Torres Strait Islander legal service portfolio, and that includes not purely the legal services but also family violence legal prevention services. I think advocacy is a really important role that our legal services have played over a period of about 35 years and has created a lot of law reform in this country. I have no doubt in my mind that, unless we have an advocacy body—with regard to my role, I am asked by the legislation that appoints me to advocate Aboriginal and Torres Strait Islander issues, and I do, but it is also useful to talk to the people who work in the field, whether they are community legal services or Aboriginal and Torres Strait Islander legal services—around policy and law reform, we will see an increase in incarceration rates. I think this is one of the most crucial issues facing us in Indigenous affairs in this country. We are at epidemic proportions.

I can give you a really slight example. Under the Queensland legislation prisoners can be placed on remand awaiting psychiatric reports. They have 21 days to provide that. We are seeing anything up to 150 prisoners on remand at the moment for anything up to 12 months waiting for those psychiatric reports to be prepared. My fear is that, if the Queensland government had been doing their job in making those reports available within the time frame allocated, we could see 150 people either sentenced or out of jail. That is just one small issue that the National Aboriginal and Torres Strait Islander Legal Services raised with me, and I am sure they raised with the Queensland government that we could actually get anything up to about 150 people out of jail fairly quickly just by the Queensland meeting their requirement under their laws to prepare those reports within 21 days.

Without a legal service to advocate that or even to raise it with me, if they are just providing frontline services, where do those 150 people go to?

Senator SIEWERT: Thank you. So, in other words, it does play a role in addressing incarceration rates in this country.

Mr Gooda : Absolutely. When you talk to the practitioners who work in the system day in and day out—this is not overturning the criminal justice system; this is actually in some cases tweaking it—the practitioners have a lot of suggestions about how they could tweak things. Whether that falls into the area of advocacy I do not know, but I know that is a lot of work they do.

Senator SIEWERT: Or is that policy?

Mr Gooda : Policy, advocacy.

Senator SIEWERT: Thank you. Mr Innes, this takes me to the issues I raised with the department this morning: the work that was done on the rights of people with disabilities and concluding comments around the unwarranted use of prisons for management of unconvicted people with disability, with a particular focus on Aboriginal and Torres Strait Islander persons. I also note that the report that you did and released last year raised these issues. Have you had a chance to review or have any input to government on the concluding observations and the work that needs to be undertaken in light of those observations?

Mr Innes : I would endorse all the comments that Commissioner Gooda has made with regard to this issue. It applies equally to people with disabilities, who are significantly disadvantaged in the justice system and many of whom are Aboriginal and Torres Strait Islander people. The work I have done with regard to the concluding observations in this area is the access to justice report, which was released a few weeks ago. It raises these issues of people being held, in some cases, eight and 10 years without trial, being found unfit to plead and not held in appropriate accommodation after that time, but they are also disadvantaged in the justice system in numerous other ways set out in the report. I have written to the Attorney-General of the Commonwealth and to the state and territory attorneys-general to advocate these issues and to talk to them about my report. I only did that a couple of weeks ago and I have not had any of those meetings yet.

Senator SIEWERT: Okay.

Senator BOYCE: Would you be able to give us copies of those letters at some stage if that is possible? On notice would be adequate.

Mr Innes : I am happy if I am able to. They will not tell you much more than what is in the report itself. They really attach a copy of the report and request an opportunity to discuss the issues in the report with the various attorneys, but I am happy to make them available.

Senator BOYCE: Thank you.

Senator SIEWERT: I know I have to be quick, so I will ask this one quickly. It is not the first time that we have sat here talking about this particular issue and it is not the first time I have asked the department about this particular issue. It is the unconvicted people with cognitive impairment, particularly Aboriginal and Torres Strait Islander people, who are in prison. In fact, I think I started asking about two or three years ago, and we have not made any progress. What is the cut-through thing that you consider should be undertaken? I suspect we will hear back from the states the same old same old. I hope that we do not, but I suspect that we will. Where do we go from here? We are at a stalemate with the Commonwealth saying it is not their problem and the states not moving.

Mr Innes : It is a mix of law change and resources. Firstly, in terms of the law change, some changes are to the unfit to plead provisions, which require far more frequent reviews of decisions to hold people on the basis of being unfit to plead, and some changes are to the legislation in relation to that.

Senator SIEWERT: That would be policy, would it?

Mr Innes : No, to the legislation which provides the courts with the capacity to find someone unfit to plead. But mostly it is a question of resources. People with disabilities who should be in alternative accommodation are being kept in prisons or prison-like facilities because there are not the accommodations and resources available which will facilitate their pathway out of the criminal justice system and back into society, which in the majority of cases should be what is occurring.

Senator SIEWERT: Thank you.

Senator BOYCE: I have a follow-up question there. I imagine you would discuss with Commissioner Gooda the issues in this area?

Mr Innes : Absolutely. This is a report that I launched, but I have worked very closely with Commissioner Gooda on this issue.

Senator BOYCE: My next question was whether you would be intending to bring the new Human Rights Commissioner into this work since what we are talking about here is a complete abrogation of human rights.

Mr Innes : I am very happy to do that. Commissioner Wilson probably has not had a chance even to read the report at this point, but I am very happy to work with him on these issues. These are rights and freedoms for people with disabilities that I have been working on the whole time I have been Disability Discrimination Commissioner. I am happy to involve the new Human Rights Commissioner in that role.

Senator BOYCE: Thank you.

Senator SIEWERT: I have one question for Commissioner Ryan. My speeding through these issues does not mean I do not have a lot more to ask, but I am conscious of time. Have you been asked to provide any advice on the possibility of raising the pension age limit?

Ms Ryan : I have not been asked advice formally by the new government. I have made my views known to some of the members of government I have had the opportunity to speak to. My view, in summary, is this: while there appears to be a strong financial case in terms of government expenditures for raising the pension age beyond the age of 67, to which it is tracking now, and perhaps even raising the superannuation withdrawal rate to move in concert with that, those changes should not be considered until we have dealt with age discrimination in the workforce. Senator Siewert, I am sure you follow these things closely, but if you look at the burgeoning numbers of people on Newstart—

Senator SIEWERT: I have.

Ms Ryan : and on disability benefit—and, indeed, Minister Andrews has announced a review of those two benefits—you will notice that, in the age cohort 45 up, we have the greatest increase in both of those benefits. In the case of the Newstart, not only do we have the greatest growth in numbers of people going onto the benefit who are over 45 but they are on for much the longest period of time—very, very long periods of time compared with other age cohorts.

Similarly, with disability, the fact that so many people over 45 are moving onto the disability pensions suggests to me, from other evidence I have seen, that what happens is that people lose their job, perhaps in their early 50s, because of age discrimination. They cannot find a new job because of age discrimination. They go onto Newstart; they seek jobs for a year or two years, completely unsuccessfully; they become ill. They get depression; they get anxiety. Thus they go onto disability. While we have that pattern, which I think we would all love to change, I cannot see any benefit coming to government expenditures by simply raising eligibility ages. If we could improve the access of older people to the workforce, I believe you would find many people choosing to work until around 70 and perhaps even beyond. But most of us cannot make that choice now because of age discrimination.

Senator SIEWERT: Thank you.

CHAIR: I relate to this very much.

Senator HANSON-YOUNG: I have questions for Professor Triggs, Elizabeth Broderick and Tim Wilson has the new commissioner. I might start with you, Professor Triggs. You outlined earlier that you have made several requests of the government to visit the Manus Island and Nauru detention centres. What role, if any, do you believe the commission could play in reviewing the incidents that occurred on Manus Island early last week?

Prof. Triggs : Of course, I have not requested any role at all in relation to that matter. Is it a general question?

Senator HANSON-YOUNG: Yes.

Prof. Triggs : I think that it would be appropriate to have the president of the national human rights body at least part of an inquiry, partly because we have a great deal of experience in running inquiries in relation to detention centres. We have been doing this, sadly, for 14 years. So the short answer is: we bring expertise to the role and I deeply believe we bring objectivity and professionalism to determining exactly what has happened there.

Senator HANSON-YOUNG: Obviously the independent nature of any inquiry would be essential, from the commission's perspective—is that right?

Prof. Triggs : I think that is really what the Australian public will be asking for. From a legal perspective, it is not really a very good idea to have the entities under inquiry conducting that inquiry or choosing those people who conduct that inquiry. If you want an open and transparent and objective inquiry, you need people who are separate from the institutions or government bodies that manage the centres. Of course, we have any number of people in Australia who would be able to head a team in an inquiry of a wider sort that examines how it is that human behaviour leads ultimately to this level of violence.

Senator HANSON-YOUNG: Can I take it from that response, then, that you would be concerned that the inquiry as currently established—we are still waiting for the terms of reference to be formally released; it is meant to be today—may not be independent enough, especially in relation to the minister's role in knowing what he did or did not?

Prof. Triggs : I appreciate the question, but, as you may know, I have been in China on our human rights dialogue with China and I am really not quite up to speed with exactly what is being proposed. But also, of course, we would wait until we see the terms of reference and see how it is actually put together. I very much hope that the early comments that have been made of the need for objectivity are taken into account and that we do have a proper, objective inquiry.

Senator HANSON-YOUNG: There are reports today that the Australian government has been considering a plan to send asylum seekers to Cambodia. Could the commission outline whether there are any potential dangers of a breach of our international obligations if we were to transfer people who had come to Australia to a third country, like Cambodia.

Prof. Triggs : I have read reports, of course, of this preliminary discussion through the Minister for Foreign Affairs. Our concern remains exactly the same. Australia has a primary responsibility to protect those who seek asylum in Australia. If we choose a mechanism of assessment in a third country, which in and of itself, as I have said before to this committee, is not contrary to international law, it is imperative that Australia ensure the safety of those people, ensure that their claims to asylum and refugee status are properly assessed, with a proper process of review, and that it operates within a rule-of-law based environment.

I do in fact know a little bit about Cambodia. I have worked with them on their judicial reform. I certainly do not want to make remarks about where they stand. All I can say is that were Australia to consider that as an option, and were Cambodia to consider it, then we would cast the same eye on the processes as we are doing in relation to Nauru and Manus Island.

Senator HANSON-YOUNG: I will move on to Commissioner Wilson—your first estimates session and five days in the job.

CHAIR: Senator Hanson-Young, you have three minutes remaining for questions.

Senator HANSON-YOUNG: To cast your mind back, the security breach from the immigration department last week mistakenly released online the personal details of over 10,000 asylum seekers. What in your view is the implication of a massive security breach such as that?

Mr Wilson : I have to say that I am yet to receive my full briefing from the commission on legal and policy dimensions around asylum seekers, so all I can say is that it is obviously a deeply concerning event, but I do not have the specific details. That may be a question better answered by the president herself.

Senator HANSON-YOUNG: You may also need to refer this question to Professor Triggs, but I will ask you directly. Would it be appropriate for the department to inform those people who were the subject of the breach of their personal information that it has indeed happened to them?

Mr Wilson : My personal opinion, which may be different from what they are legally obliged to do, is yes, but I am happy for the president to answer the question.

Senator HANSON-YOUNG: Professor Triggs, in relation to the data breach last week in the immigration department, would it be appropriate for the department to inform all of those whose personal information was released that the breach had occurred and they were part of that security breach?

Prof. Triggs : I was in China until yesterday. Again, this is something I have only been reading in the press. I have not myself had a briefing on it. My immediate answer would be that in the interests of transparency and the safety of those people they need to know that authorities in other countries may be now aware of personal details of which they were not previously aware. That is obviously the concern that one would have from the human rights law point of view. Before giving you any kind of categorical answer, frankly I would like to have a briefing with my own legal experts and get back to you on notice.

Senator HANSON-YOUNG: Could you, between you and Mr Wilson, take those questions on notice?

Prof. Triggs : We will be pleased to.

Senator HANSON-YOUNG: The main issue being the implications for that security breach on the safety of those people and the implications for their human rights. Ms Broderick, there are reports today that the government is considering slashing the requirements under the gender equity reporting regimes, ensuring that rather than asking for companies that employ more than 100 people to report on the male versus female numbers in their workplaces the threshold will be raised to 1,000 employees. What implications do you think this will have in relation to making sure we do have a spotlight on gender equality in the workplace?

CHAIR: It really is a hypothetical question. Has it been announced as an action?

Senator HANSON-YOUNG: I am asking what the implications of a change such as this would be. It does not mean, Chair—

CHAIR: It is up to me whether to allow questions that are contrary to the standing orders, and hypothetical questions are contrary to standing orders.

Senator HANSON-YOUNG: It is not a hypothetical question.

CHAIR: Anyway, you have 10 seconds left, so go ahead and ask it.

Ms Broderick : I have read the reports, as well. As I understand it the Department of Employment is in a period of consultation. They are out with stakeholders, me included, asking us what we think about the changes. At this stage we are providing feedback on a confidential basis. So it is still a work in progress.

CHAIR: Senator Boyce, you have a couple of minutes.

Senator HANSON-YOUNG: Can you follow up on that.

Senator BOYCE: Mr Broderick, you have a report on pregnancy and return to work. When is that due out?

Ms Broderick : We will have the headline prevalence data, which will be out by the beginning of April, and then there will be a full report in June.

Senator BOYCE: You will notice that there have been 'many distressing experiences', to use your words, in terms of the submissions to that. Will that be looking at the size of companies—whether they are small, medium, 100-plus or 1,000-plus companies—at the time that you develop your report or your headline statistics?

Ms Broderick : Yes, we will be looking at all sizes of companies across all sectors. We have been to every state and territory, capital cities and regional areas, so it will be very expansive.

Senator BOYCE: So it would identify potential trends in the size of company and level of discrimination, so to speak.

Ms Broderick : Yes, that is exactly right.

Senator SINGH: My question is to Mr Wilson. What date did you resign your membership of the Liberal Party?

Mr Wilson : I resigned on 11 December 2013.

Senator SINGH: Are you still a member of The Bolt Report supporters group?

Mr Wilson : This is a Facebook group. I have removed all Facebook groups that I think may be controversial to my role, which includes that one, not that I think there is anything controversial about liking a television program.

Senator SINGH: You have removed the 'Log Cabin Republicans' and 'Privatise the ABC!', as well?

Mr Wilson : Yes, I was surprised about the 'Privatise the ABC!' one, because it does not actually reflect my view. But I have removed that, as well.

Senator BOYCE: But you are obliged to like a site to be able to look at what is on it.

Mr Wilson : I also like to follow sites sometimes for content, because I am interested in what other people say.

CHAIR: Thank you to the Australian Human Rights Commission, and I add my welcome to Mr Wilson.