Bill to remove Commissioner

Federal Government proposes to abolish position of Aboriginal and Torres Strait Islander Social Justice Commissioner

A Message from Dr William Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner

I write to alert you to a Federal Government proposal to abolish the post of Aboriginal and Torres Strait Islander Social Justice Commissioner (together with the posts of Race Discrimination Commissioner, Sex Discrimination Commissioner, Disability Discrimination Commissioner and Human Rights Commissioner). Those interested in this matter may wish to make a submission to the Senate Legal and Constitutional Legislation Committee inquiry into the government's bill before the closing date of 24 April 2003. Details follow.

The proposal

A Bill has been introduced into federal Parliament which seeks to abolish the position of Aboriginal and Torres Strait Islander Social Justice Commissioner. The proposal is to restructure the Human Rights and Equal Opportunity Commission by creating three generalist Human Rights Commissioners to replace the existing specialist commissioners (Aboriginal and Torres Strait Islander Social Justice, Race Discrimination, Sex Discrimination, Disability Discrimination and Human Rights Commissioner).

Under the Bill, none of the three Human Rights Commissioners would have specific responsibility for Aboriginal and Torres Strait Islander social justice issues. The allocation of specific responsibilities would be at the discretion of the President. The Commission as a whole, however, would still be required to submit the annual Social Justice and Native Title reports to federal Parliament.

The Bill removes the present requirement that the person appointed to the position of Aboriginal and Torres Strait Islander Social Justice Commissioner be required to have significant experience in community life of Aboriginal persons or Torres Strait Islanders. None of the proposed generalist Human Rights Commissioners will have to meet this requirement.

Current functions of the Social Justice Commissioner to promote discussion and awareness of Indigenous peoples' human rights, and to undertake research and educational programs for the purpose of promoting respect for Indigenous peoples' human rights will be maintained as general Commission functions. They would compete for attention with the functions dealing with sex and disability discrimination, human rights and race discrimination. There is no guarantee that a future Commission will always devote resources and attention to these issues.

The current position

The position of Aboriginal and Torres Strait Islander Social Justice Commissioner was created in 1992 largely in response to the Royal Commission into Aboriginal Deaths in Custody and HREOC's National Inquiry into Racist Violence. The role was created to ensure an ongoing national monitoring mechanism for the human rights situation of Indigenous peoples.

The inaugural Commissioner was Dr Mick Dodson (1993 - 1998). The second, and current, Commissioner is Dr William Jonas (1999 until 2004).

In 1999, the UN Committee on the Elimination of Racial Discrimination urged Australia to reconsider its attempt at that time to abolish the Social Justice Commissioner position to ensure that the absence of a specialist commissioner does not adversely affect the ability of the Commission to address in an adequate manner the full range of issues regarding indigenous peoples that warrant attention given the continuing political, economic and social marginalization faced by the indigenous community of Australia (UN Doc: A/54/18,para.21(2)).

Recent Census and other data does not suggest that there has been sufficient progress in addressing the marginalisation of Indigenous peoples since the need for a specialist Social Justice Commissioner was identified in 1992. In fact, the situation in many respects - such as contact with criminal justice processes, contact with care and protection systems, life expectancy and significant measures of health - has actually declined.

Achievements of the Social Justice Commissioner

Major achievements to date include:

• annual Social Justice Report to the federal Parliament (1993 - ongoing);
• annual Native Title Report to the federal Parliament (1994 - ongoing);
• Social Justice package proposals (1995);
• Review of Aboriginal Deaths in Custody 1991 -1996 (1996);
• Co-Chair of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families and co-author of Bringing them home report (1997);
• National Indigenous Legal Studies Curriculum (1998); revised 2002-03;
• Member of the Indigenous negotiation team for Native Title Act amendments (1997-1998);
• Tracking Your Rights community training packages (1998);
• National Indigenous Youth Forum Convenor (1999);
• Briefed the UN Committee on the Elimination of Racial Discrimination about native title and racial discrimination (1999);
• https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/projects/native-title (2000);
• Co-convened Moving Forward - national conference on stolen generations (2001);
• Intervention in High Court Miriuwung Gajerrong case (2001);
• Intervention in High Court Yorta Yorta case (2002);
• Workshop on corporate responsibility and native title (2002);
• Workshop on benchmarking reconciliation and measuring Indigenous disadvantage (2002).

Other amendments

The legislation proposes changing the name of the Commission to the 'Australian Human Rights Commission' and giving more prominence to the public education functions the Commission already exercises.

Another amendment threatens the Commission's independence as well as its potential to defend human rights effectively. The Commission will need the Attorney-General's permission before it can apply to a court to intervene in a case raising human rights principles. At present, the Commission must seek leave to intervene from the relevant Court. In 35 such applications for leave to date, the courts have allowed HREOC to intervene in every case indicating that the Commission's use of the power has been appropriate. The proposed change would mean that the Attorney-General would be the gatekeeper of this function even in cases where the government is a party to the litigation and in circumstances where they oppose the Commission's submissions.

• Click here to read HREOC's press release on the proposal.

Senate is inquiring into the proposals

The legislation will be investigated by the Senate Legal and Constitutional Legislation Committee which has been asked to report by 29 May. Submissions close 24 April.

• Click here for information about the Senate and Legal Constitutional Legislation Committee's inquiry.

Contact details for the Committee are:

Peter Hallahan

Secretary

Senate Legal and Constitutional Committee

Room S1.61, Parliament House

Canberra ACT 2600



Telephone: (02) 6277 3560

Fax: (02) 6277 5794

E Mail: legcon.sen@aph.gov.au

 

Last updated 11 April 2003.