General Daryl Williams AM QC MP is
a tryer. He's been trying to nobble the
Rights and Equal Opportunity Commission
ever since he became Attorney General
in March 1996.
He's tried by cutting the Commission's
budget by 40 per cent during the first
term of the Howard government. He's tried
by securing the appointment of Commission
members thought to be more sympathetic
to the government's political views. And
he's tried by repeated attempts to re-structure
the Commission and bring its operations
more directly under his personal control.
He hasn't succeeded. The Commission struggles
on in spite of the budget cuts; its members
appointed by the Howard government have
not been afraid to speak up and tackle
difficult issues; and its legislation
remains unchanged in the critical ways
the Attorney General wanted it changed.
But Daryl is still trying.
Last month the Attorney General introduced
his latest attempt at legislation to re-structure
the Commission, the Australian Human Rights
Commission Legislation Bill 2003. And
it's worse than the last version of the
The Bill has some provisions that are
positive, although not significant to
the Commission's operations, like changing
the name to the Australian Human Rights
Commission. That's a good idea but it
won't have any effect on the protection
of human rights. It has other provisions
that are cosmetic and ideological, like
re-ordering the list of the Commission's
functions to bring higher those that relate
to education. The government has always
been far keener on human rights education
than on the hard-edge operations of investigating
and exposing human rights violations and
providing remedies for victims. Re-ordering
the list will make the Attorney General
feel good but it won't affect the Commission's
operations or its capacity to determine
its own priorities. Of course, if he really
wanted the Commission to do more about
human rights education, he'd restore the
budget to the level it was before he embarked
upon slash and burn in 1997.
Take out the insubstantial and the cosmetic
changes and the Bill is left with a couple
of real nasties.
First, the Attorney General wants the
power to veto Commission applications
to intervene in court proceedings of relevance
to human rights. Or rather, he wants interventions
to be subject to his approval.
Interventions have been among the most
important functions undertaken by the
Commission since its establishment in
1986. Certainly the courts, right up to
the High Court itself, have seen the function
as important and the Commission's contribution
to proceedings as helpful and significant.
Intervention is at the discretion of the
court hearing the case. The Commission
has been denied court approval to intervene
only once in its 17 years. In many cases
the courts themselves have drawn matters
to the Commission's attention with a clear
indication that they would be assisted
by the Commission's participation. The
court is the appropriate body to determine
whether the Commission should be permitted
to intervene, not the Attorney General.
The inappropriateness of the proposal
is evident in the nature of the cases
in which the Commission seeks to intervene.
They have been predominantly cases in
which the Commonwealth is a party or an
intervener. If the Commonwealth were arguing
a human rights position, then the Commission
would not need to intervene. The Commission
need intervene only where the Commonwealth's
position is contrary to human rights requirements.
Of course, this is precisely why the
government is now attempting to subject
the intervention function to the Attorney
General's approval. The government does
not like being opposed by the Commission.
However, the amendments would have the
effect of requiring the Commission to
seek the Attorney General's approval for
it to intervene to argue against the Commonwealth's
position. It creates a conflict of interest
for the Attorney General, who is subject
to Cabinet direction and is not independent.
The inevitable result would be that the
Attorney General would refuse consent
in almost all cases.
The government included similar provisions
to these in its earlier attempt to amend
the Commission's legislation. On that
occasion the Senate Committee recommended
unanimously against the proposal. The
government amended the then Bill accordingly.
The attempt now to return to the earlier
discredited and rejected position is inexplicable.
This proposal is essentially no different
from the earlier one and should receive
the same response. It is a serious attack
on the Commission's independence in relation
to one of its most important functions.
Second, the Bill would abolish the Commission's
specialist commissioners with responsibility
for Indigenous rights, disability discrimination,
race discrimination, sex discrimination
and civil and political and children's
rights and replace them with generic human-rights
commissioners. This too has been part
of the Attorney General's plans for the
Commission since the earliest days of
the government. It too has been tried
before and failed, largely because the
groups with most knowledge about human
rights in Australia - Indigenous groups,
disability groups, women's groups, ethnic
community groups - see the loss of specialists
commissioners as a downgrading of human
rights protection. And it is.
The structure based on specialist commissioners
has many advantages.
- Each commissioner and his or her staff
have been able to develop expertise
in the special human rights issues impacting
on part of the community.
- The public advocacy and public education
role played by the commissioner in respect
of that set of issues has been the hallmark
of the specialist commissioners and
a particularly effective way in which
they have contributed to the development
and protection of human rights standards.
- The specialist commissioners have
earmarked responsibility for monitoring
and promoting Australia's compliance
with particular international conventions
and implementing Australian laws.
- The often quite distinct stakeholders
who are particularly affected by violations
of the particular human rights in questions
have had a clearly identifiable officer
to whom they can address their particular
and unique concerns.
The Bill is under investigation by a
Senate Committee with a very tight reporting
deadline. On past experience there can't
be much chance that it will pass the Senate.
But then, Daryl Williams is a tryer. Maybe
he thinks he might suggest the Prime Minister
try a double dissolution to get it through.
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