If at first you don't succeed … Daryl Williams's battle to nobble HREOC

Attorney General Daryl Williams AM QC MP is a tryer. He's been trying to nobble the Human 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 last attempt.

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.