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Does the Human Rights Commission treat some groups more equally than others?

By Brendan O'Reilly - posted Tuesday, 9 July 2013


The Australian Human Rights Commission, amongst other duties, has federal responsibility for eliminating key forms of discrimination. It recently attracted notoriety following a stoush between Disability Commissioner Graeme Innes and retail chain Myer. Myer chief Bernie Brooks had criticised the cost of funding Disability Care Australia because it might reduce retail spending and consequently Myer's sales. Commissioner Innes expressed disapproval of these remarks and launched an on-line petition calling on Myer to introduce a 10 per cent disabled worker quota. Innes's actions in turn have raised concerns, both because the petition was directed at an individual company, and because the campaign was seen by some as partisan and semi-political.

Advocates for personal liberties have consistently expressed a range of concerns about the Human Rights Commission and how it operates. I wish to focus on just one issue, which is whether the Commission is the stickler for impartiality and even-handedness that it ought to be, given its role.

In regard to anti-discrimination, key responsibilities of the Australian Human Rights Commission include policy advising, compliance, public awareness, investigation (including public inquiries) and dispute resolution. The Commission is also tasked with the role of being the independent third party, which initially receives complaints, investigates them, and attempts to conciliate them. If the parties are unable to reach agreement at conciliation, the complainant can then take their case to the Federal Court or the Federal Magistrates Court. In such proceedings, the Commission may act as intervener (e.g. by making submissions) or as a friend of the court (e.g. assisting on points of law). Prior to changes made by the Human Rights Legislation Amendment Act 1999, the Commission itself used to conduct hearings and make determinations in individual cases of alleged discrimination.

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In carrying out its complaint-handling and other investigative roles (which might be described in part as quasi-judicial), there would seem to be a clear obligation to follow accepted principles of natural justice.

In propria causa nemo judex (no one can be judge in their own cause) is one of the key principles of natural justice. This rule is strictly applied by the Courts to even an appearance of possible bias. For anyone tasked with investigating discrimination this ought to be a particularly important principle. The rule applies to both actual bias and (more importantly) to ostensible bias (where there might be a reasonable concern that such a person appears not to be impartial, detached, and unprejudiced). The issue is not whether there is a real likelihood that the they are biased, but instead whether a fair minded person might question whether such a person has an unprejudiced mind.

The various Human Rights Commissioners over time have included many eminent and high profile people. Few could doubt their sincere commitment to fair decision-making or accuse them of conscious bias. That said, one cannot fail to observe the following:

  • To date all six Sex Discrimination Commissioners have been female.
  • All four Aboriginal and Torres Strait Islander Social Justice Commissioners to date have been Indigenous.
  • Five of the six Race Discrimination Commissioners to date have been of non Anglo-Celtic background.
  • To date all (two) Disability Discrimination Commissioners have been disabled.
  • The current Age Discrimination Commissioner (one of three to date) is aged 71.
  • The figures above only include substantive appointments and exclude those in an acting capacity.

The statistics certainly show a disposition on the part of governments to appoint Human Rights Commissioners of a similar background to the discrimination victim group from which most of their complainants come. I am not a believer in quotas as long as appointments to key positions are based on merit but, on the face of it, this seems only partly to be the case. Some may argue that lack of balance in terms of these appointments mainly reflects a policy of selecting those with most expertise in the subject matter. My assessment is that the sheer extent of the imbalances suggests otherwise.

Of greater concern is that a quick scan of current and past Commissioners brings up some names that one might consider to be of an "activist" or "committed" background. Such a background might be desirable in an advocacy role but does not inspire confidence that the person has the desired "unprejudiced mind" to be even-handed in an investigative or policy advising role.

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This broad issue of partiality arose during the Howard Government era, when moves were made to abolish specialist commissioners, who were to be replaced by general commissioners. Such a change proved politically too difficult, with the debate taking place primarily in relation to the status of the Sex Discrimination Commissioner. Two former Sex Discrimination Commissioners were prominently opposed, and there also had been opposition from key Liberal Party women and some community groups. So the specialist commissioners remain.

Sex discrimination is the highest profile area of the Australian Human Rights Commission. The Sex Commissioner's Gender Equality Blueprint 2010, is illustrative of the Commission's priorities. It set out recommendations in five priority areas, said to significantly affect the lives of women and men. These were:

  • Balancing paid work and family and caring responsibilities (with paid parental leave, flexible work, and child care being key constituents)
  • Ensuring women's lifetime economic security (this controversially included a minimum target of 40% representation of each gender on all Australian Government Boards within three years, the Government to also consider legislating to require all publicly-listed Boards to achieve a mandatory gender diversity quota of a minimum of 40% of both genders within a specified timeframe)
  • Promoting women in leadership
  • Preventing violence against women and sexual harassment
  • Strengthening national gender equality laws (to ensure women experience equal outcomes in the workplace), and strengthening agencies and monitoring (including ensuring that the federal Office for Women is adequately funded and has influence).
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About the Author

Brendan O’Reilly is a retired commonwealth public servant with a background in economics and accounting. He is currently pursuing private business interests.

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