Dasvarma, Amrita --- "Women's rights: Whose responsibility?" [2003] AltLawJl 42; (2003) 28(3) Alternative Law Journal 145

• WOMEN'S RIGHTS
• Whose responsibility?
• Removing specific portfolio commissioners and appointing three generalist commissioners instead
• Removing HREOC's power to intervene in cases directly with court approval except where approved by the Attorney General
• Other amendments
• Conclusion

WOMEN'S RIGHTS

Whose responsibility?

AMRITA DASVARMA^[*] discusses changes proposed by the Australian Human Rights Commission Bill 2003, which compromise Australia's domestic and international human rights obligations.

An independent and strong national human rights institution is absolutely necessary to ensure that international human rights obligations are implemented at a domestic level. In Australia, in the absence of a Bill of Rights, and no other constitutional or legislative human rights protection, the anti-discrimination legislation^[1] is the only means of implementing, and monitoring, Australia's international obligations.

Since its election in 1996, the Howard Liberal Government has continuously attempted to weaken our national human rights protection system. The Human Rights and Equal Opportunity Commission (HREOC) has sustained considerable budget cuts over the last six years; it has carried out its duties with only three out of the five commissioner positions filled; and it has been the subject of a series of attempted legislative reforms instigated by the federal government. The most recent of these attempts occurred early this year with the proposed Australian Human Rights CommissionBill2003 (the AHRC Bill). This brief addresses critical issues raised by the proposed AHRC Bill.

The United Nations' Principles Relating to the Status of National Institutions for the Promotion and Protection of Human Rights, or the Paris Principles^[2]

enshrine the crucial attributes of a national human rights institution. These include:

• legislatively guaranteed independence,

• autonomy from government,

• pluralism in representation,

• investigative powers,

• adequate resourcing, and

• a broad mandate based on universal human rights standards.

If any of these attributes is compromised, the capacity and function of the human rights institution is also compromised. The AHRC Bill introduced by the Attorney-General compromises a number of these attributes.

Two of the proposed changes in particular would have a significant detrimental impact on HREOC's capacity and effectiveness. These two areas are:

• removing portfolio-specific commissioners and appointing three generalist commissioners; and

• removing HREOC's power to intervene in cases directly with court approval except where approved by the Attorney General.

Removing specific portfolio commissioners and appointing three generalist commissioners instead

The purpose of anti-discrimination law, and therefore of HREOC, is to protect groups with different needs, who may be disadvantaged because of their sex, race, ability, or some other aspect of their identity. Intersectional discrimination affects those simultaneously experiencing more than one form of discrimination who are, therefore, often more marginalised and in even more need of human rights protection. The intersectionality of human rights issues is a key area of concern in developing effective anti-discrimination laws, a concern identified both in Australia and globally. In his speech to parliament at the second reading of the AHRC Bill, the Attorney General commented that replacing the specialist commissioners with three generalist human rights commissioners will 'take into account the possibility of new areas of commission responsibility ... [and] the fact that human rights issues increasingly cross over the portfolio-specific boundaries of the existing structures'. ^[3]

This would appear to be a recognition of the intersectionality of different kinds of discrimination. However any genuine recognition of this kind is meaningless without commensurate legislative and resourcing support. Indeed, it appears to be part of the federal government's continuing strategy to weaken HREOC by further cuts to the resources provided to HREOC.

Unless relevant anti-discrimination legislation is expanded to identify the intersectionality of discrimination, there is no guarantee that the proposed generalist commissioners will consider the overlap of issues when dealing with discrimination. Further, combining the responsibilities of the portfolio-specific commissioners and creating three generalist commissioners to protect and promote the human rights of all Australians does not recognise the increased resource requirements of dealing with cases concerning intersectional discrimination.

HREOC has begun to recognise the impact of intersecting discrimination, and is implementing an intersectional approach with regard to some of its work. For example, the Race Discrimination and Sex Discrimination Units have commenced collaborative work in the lead-up to and following the United Nations World Conference Against Racism^[4]in Australia. In this context, specialist commissioners, provide a comprehensive focus on a particular area of discrimination, which increases the likelihood that intersectional issues will be correctly identified and appropriate strategies developed. Intersectional discrimination will not be effectively addressed by decreasing HREOC's representative and advocacy capacities.

Specific commissioners provide a voice for specific issues, whether it is social justice issues for Aboriginal and Torres Strait Islanders, or sex, race or disability discrimination issues. The creation of these roles was a symbol of the government's commitment to address specific human rights breaches, and its willingness to allow an independent body to ensure compliance with Australia's obligations under both domestic and international law. Reducing the number of portfolio-specific commissioners in the context of an increased workload, calls into question the government's commitment to addressing and/or preventing human rights breaches.

Of particular concern is the possibility that of the three generalist commissioners, none may have significant experience in the community life of Indigenous peoples (as is currently required of the Aboriginal and Torres Strait Islander Social Justice Commissioner); nor is there a provision to guarantee the appointment of at least one woman. This clause could also compromise the need for 'pluralist representation' as outlined in the Paris Principles, as it does not ensure a fair process of appointment accessible to different sectors of society. The current legislation provides specialist commissioners with the power to promote and protect specific human rights issues, without being forced to justify or prioritise the needs of one group over another (or indeed one group with multiple needs over another group with one need). The introduction of generalist commissioners is divisive and may ultimately have the effect of pitting one disadvantaged sector of the population against another.

Removing HREOC's power to intervene in cases directly with court approval except where approved by the Attorney General

This part of the AHRC Bill would restrict HREOC's powers of intervention in court cases. The Commission would only be able to intervene with the approval of the Attorney General, or notification of the Attorney General of HREOC's intent to intervene in a court case where the HREOC President is a former judge.

Currently, HREOC, has the right to intervene in Court cases that involve human rights and discrimination issues, with the leave of the Court.^[5] The Commission has intervened in only 35 court proceedings in 17 years, and has never had an application to intervene refused.^[6]

The intervention function applies to HREOC as a whole, unlike the amicus curiae, or 'friend of the court' function, which is reserved for special purpose commissioners.^[7]

The intervention function allows HREOC to intervene in proceedings involving 'human rights issues' which are defined in s.3(1) of the Human Rights and Equal Opportunities Commission Act (HREOCA) as the rights enshrined in the following international instruments.

• International Covenant on Civil and Political Rights,

• Convention on the Rights of the Child,

• Declaration on the Rights of Mentally Retarded Persons,

• Declaration on the Rights of Disabled Persons, and

• Declaration on the Elimination of All Forms of lntolerance and of Discrimination Based on Religion or Belief.

Many of these rights are not protected by specialist legislation (ie the Disability Discrimination Act, the Racial Discrimination Act and the Sex Discrimination Act) and as such would not be represented except for the intervention of HREOC.

By requiring HREOC to seek approval from the Attorney General each time it intends to intervene in a Court case involving human rights issues, the federal government undermines the independence of HREOC and therefore weakens Australia's commitment to comply with those conventions to which Australia is a signatory. The importance of the independence of HREOC is underlined by the fact that the federal government has been involved in 18 of the 35 cases in which HREOC has intervened, 16 of which HREOC presented a contrary view to the government. While HREOC falls under the portfolio of the Attorney General, there is a clear risk of conflict of interest should HREOC seek to intervene in a court matter involving the government.

This proposed requirement also undermines the separation of judicial and executive powers, a notion that underpins the Constitution. The courts involved in these particular cases have the right to refuse HREOC's intervention, but allow it, as appropriate, to ensure that all relevant issues have been considered in determining a case. The Attorney General's concern that currently HREOC's court submissions duplicate and waste resources is a usurpation of the authority of the courts.

Lastly, this amendment seriously weakens HREOC's capacity and functions as a national human rights institution as set out in the Paris Principles.^[8]

The need for independence and autonomy from the government, have been identified as absolutely crucial attributes for a national human rights institution. This amendment breaches both of those principles and as such would severely compromise HREOC's reputation and standing both within Australia and internationally.

Other amendments

The Bill also removes existing provisions allowing HREOC to establish Community Relations Councils or advisory committees, on the basis that these provisions have been rarely, if ever, used. Certainly, HREOC may not have used this function effectively, in part, at least, due to a lack of resources. However, the purpose of the provision to encourage HREOC to consult and liaise with the broader community remains crucial to the proper working of HREOC. The removal of this provision may mean that community consultation, if it occurs, will happen on an ad hoc basis.

The Bill also proposes a by-line, 'Human rights -everyone s responsibility', for HREOC. This implies that human rights are an individual responsibility, and as such, undermines Australia's responsibility,' indeed the federal government's responsibility to comply with Australia's obligations under international conventions and treaties to respect and protect human rights.

Conclusion

The changes proposed by the AHRC Bill compromise Australia's domestic and international human rights obligations. They also compromise the Paris Principles which identify the qualities required for an effective national human rights institution, but also the AHRC Bill puts the public perception, function, effectiveness and independence of HREOC at grave risk, ultimately endangering the system we have for protecting and ensuring the human rights of all Australians.

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^[*] Amrita Dasvarma has adapted here a submission on the Australian Human Rights Commission Bill2003 made to the Senate Legal and Constitutional Committee by the Women's Rights Action Network Australia.

©2003 Amrita Dasvarma.

^[1] The Acts are the Race Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Human Rights and Equal Opportunity Commission Act 1986 (Cth) and Disability Discrimination Act 1992 (Cth).

^[2] From <http://www.asiapacificforum.net/about/pari s _principles.html> . Australia has supported the Paris Principles wholeheartedly and has assisted other countries to establish national human rights institutions in the region based on the Principles.

^[3] Attorney General's Second Reading Speech to Parliament House accessed at <http://www.aph.gov.au/senate/committee/legcon_ctte/human03/index.htrn> .

^[4] Please see the HREOC Issues Paper on Gender and Race Intersectionality at <http://www.humanrights.gov.au/racial_discrimination/national_consultations/gender.html> .

^[5] Section 11 (1)(o) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth).

^[6] From <http://www.humanrights.gov.au/legal/application/intervention_info.htrnl> .

^[7] From <http://www.humanrughts.gov.au/lcgal/amicus_discussion.html> .

^[8] From <http://www.asiapacificforum.net/about/paris_principles.html> .