The year in review
The 2020–2021 financial year has been a period of great hardship for many people in Australia and across the world.
The COVID-19 pandemic has continued unabated for the entire reporting period. Millions of Australians have been in lockdown with stay-at-home public health orders for lengthy periods of time. Children have been educated remotely from home, and without access to the great benefits and community that schools offer. Borders between states and territories have shut, often at short notice and for lengthy periods of time. Families have been separated. Many people have struggled economically, with uncertain employment exacerbated by lockdowns and being felt particularly by the most marginalised in our community.
The situation has been overwhelming and has undoubtedly created challenges for the mental health of people across the community. But there have been signs of reassurance too.
Outbreaks of COVID-19 in Australia have been contained to a greater extent than most other places globally, although we are now challenged by the highly contagious Delta variant. Leaders of governments nationally have also engaged in regular, often daily, dialogue with the public to explain their actions to protect the lives and health of all people in Australia – something that is unprecedented in modern times. Aboriginal and Torres Strait Islander communities have been untouched by the virus for the duration of the pandemic – a testament to the success and importance of Indigenous community-controlled health services. And workplaces nationally have quickly adapted to more flexible styles of working from home and accommodating caring responsibilities – forever changing traditional cultural attitudes to work.
As with last year, I have been humbled and inspired by the extraordinary efforts of our frontline workers. Everyone is playing their part – most of the community have demonstrated their willingness to do their bit to prevent the spread of COVID-19, by social distancing and accepting very difficult restrictions on individual liberties and freedoms in the name of a greater good. So many Australians are now being vaccinated to reach the herd immunity that will make it so much easier to live with COVID-19.
It has been the most extraordinary display of commitment. It has highlighted vividly that we are more than a collection of individuals. That we see ourselves as part of a community, with responsibilities to each other, and where the rights of each other matter.
The Australian Human Rights Commission often sees the most difficult aspects of the pandemic, through our role in handling discrimination and human rights complaints. We received a 35% increase in complaints when compared to the previous reporting period and this trend is continuing with current projections estimating over 4,500 complaints in the next reporting cycle. In the initial phase of the pandemic, these complaints were primarily related to race discrimination. Since then, they have largely related to disability discrimination, and human rights complaints relating to masks and border closures (both domestically and internationally).
I am very proud of the fact that our Investigation and Conciliation Service continues to receive exceptionally high satisfaction ratings from those participating in the process. It is notable that the highest satisfaction ratings come from respondents to complaints – that the Commission is seen as professional, supportive, and impartial in how it acquits its role in addressing complex complaints, often in stressful circumstances, is a testament to the quality of our staff.
We are, however, facing significant capacity constraints in dealing with the dramatic increase in complaint numbers over the past year.
Our Commissioners have also focused much of their effort on contributing to pandemic-related challenges – such as those affecting people with a disability, children, women, people from non-English speaking backgrounds, Aboriginal and Torres Strait Islander peoples, people in vulnerable situations such as immigration detention, as well as in considering the reasonableness and appropriateness of limitations on people’s rights that have been introduced to respond to the pandemic.
One thing is clear from this.
People care about their human rights and fundamental freedoms. And they are troubled when rights are restricted.
As President, I have spent the year engaging with the community on the Free and Equal project: looking to the adequacy of human rights protections in law, policy and programs at the federal level. The outcomes of this will be released in the coming year when the Commission publishes a series of position papers and reports.
In brief, what these discussions have revealed is that our legal framework for protecting rights is extremely limited. Our anti-discrimination laws are out of date and less effective than they should be. This is accompanied by limited protection of human rights and fundamental freedoms more generally.
The pandemic response shows us that the community is willing and able to have discussions about the balancing of human rights, whether restrictions imposed are justifiable or not, and what would be the most proportionate approach to addressing an issue.
As we move out of crisis mode with the pandemic, it is timely for us to build on this dialogue and extend it to other areas of human rights concern in Australia.
As a nation, we should be having the same discussions about the myriad of issues that exist in our community.
Why do we not make better use of alternatives to the jailing of children as young as 10 years of age (especially when we know that we are talking about a small group of children, and the vast majority of crimes committed are minor)?
Why do we insist on detaining people found to be refugees in closed detention settings for lengthy periods of time, rather than placing them in community settings, especially when we know that the vast majority pose limited security threats to the community and that they suffer severe mental health impacts as a result of detention?
We know that when governments have failed to act to protect Australians, we often look to Royal Commissions to identify how people should be treated into the future. Royal Commissions into the treatment of people in aged care, institutional abuse of children, children in detention and care and protection in the NT have all had better protection of human rights at the centre of their concerns and proposals for reform.
It is time that we put into practice better laws and policies to protect people’s human rights rather than conducting Royal Commissions to examine human rights breaches after the fact.
It is my hope that one of the abiding legacies of the COVID-19 pandemic will be to open up the conversation about how best we can protect human rights and, by doing so, to best respect the rights of Australians wherever they are, and every day.
The past year has also been a landmark year in addressing sexual harassment. The Commission’s report of the National Inquiry into Sexual Harassment in Australian Workplaces, Respect@Work, was tabled in March 2020. Subsequent developments in the community, and most notably in the federal Parliament, have put much focus on the report and its recommendations. Amendments to the Sex Discrimination Act 1984 (Cth) currently sit before the federal Parliament to implement some of the recommendations of the report. These amendments are a positive start, and the Commission looks forward to engaging with government and Parliament about the need to move further to fully implement the report’s recommendations.
The Commission is currently conducting a review of the Australian Parliament as a Workplace, led by Sex Discrimination Commissioner Kate Jenkins, to report in late 2021. It speaks to the credibility of the Commission among the broader Australian community that we were tasked with undertaking this review – where our credibility, expertise and independence were all critical factors for the government.
The past year has also seen the culmination of two major projects conducted over several years – first, by our Human Rights Commissioner, Ed Santow, on human rights and technology; and second, by our Aboriginal and Torres Strait Islander Social Justice Commissioner, June Oscar AO, the Wiyi Yani U Thangani report on the voices of Indigenous women and girls.
Both reports set out bold visions for reform to law, policy and practice, to equip the Australian community to maximise the benefit of new technologies and artificial intelligence, while keeping the rights of the citizen at the heart of new developments, and to better protect the rights of Aboriginal and Torres Strait Islander women and girls, particularly by drawing on their strengths and addressing the structural barriers that they face in our community. Mr Santow concluded his five-year term as Human Rights Commissioner in July 2021, and I thank him for his contributions over this period. The human rights and technology report will be a lasting legacy for his advocacy over many years.
The new National Children’s Commissioner, Anne Hollonds, commenced in this reporting year and has been focused on protecting the most vulnerable children in our community who are at risk of abuse, neglect, and separation from their families. National consultations with at-risk families and children have been held to inform the next iteration of the national child protection framework. The Commissioner has called for more joined-up, holistic support across the multiple national frameworks that exist to protect children – to ensure the most vulnerable do not fall between the gaps (or silos) of different systems.
The Race Discrimination Commissioner, Chin Tan, has also been focused on policy coherence in relation to racism and social cohesion. A concept paper was released in March 2021 setting out the need for a national anti-racism framework – elevating treating racism to the same level as how we treat the scourge of family violence, for example. The Commission is encouraged by the engagement of the federal and state and territory governments with the proposal. National consultations are currently underway and will result in a detailed model for future action by government.
The Disability Discrimination Commissioner, Dr Ben Gauntlett, launched the IncludeAbility project this year, designed to equip employers with the knowledge and tools to increase meaningful employment opportunities for people with disability. The project also provides important information for people with disability seeking employment about their rights, tips on applying for roles, preparing for an interview, and what they can expect from prospective employers.
The Age Discrimination Commissioner, the Hon Dr Kay Patterson AO, has focused considerable attention on the importance of addressing elder abuse in the community, through community awareness activities including a highly successful video, ‘Know the Signs’ and in working with governments to implement the Australian Law Reform Commission’s report on elder abuse.
As we move forward, the Commission is facing certain financial issues. The Commission has been operating beyond its annual funding sources. This is in part a result of cost pressures faced by the Commission including the costs associated with supporting Commissioners and an increase in complaints over the past five years. In addition, the work of the Commission has increased substantially because of the COVID-19 pandemic, with the Commission recording a 35% increase in complaints this year and this trend is continuing with current projections estimating over 4,500 complaints in the next reporting cycle. The Commission is working with the Government to address these issues in a way that ensures that the Commission can meet our statutory obligations in promoting and protecting human rights in Australia.
We look forward to Australia emerging from the pandemic with our communities stronger, and with people more connected to each other; with there being a greater appreciation of the importance of respecting each other’s rights and our individual and collective role in achieving this; and with the knowledge that no challenge is too great for our nation to face – knowing that bold, determined action can be taken on any number of human rights challenges, if there is a will to do so.
Emeritus Professor Rosalind Croucher AM