Human Rights and Equal Opportunity Commission
Annual Report 2003-2004
Statement from the President
The Hon. John von Doussa, QC
President, Human Rights and Equal Opportunity Commission
It is now just over one year since I took up my appointment as President of the Commission. During this time, the world's attention has been focussed on the international terrorist threat and how governments, including our own, can contain and counter that threat. In Australia, the Commission has been mindful of the fact that any counter-terrorism measures must be enacted and administered in accordance with existing domestic and international laws, including human rights laws. Indeed, strengthening respect for and compliance with human rights standards is an essential component of a comprehensive response to terrorism.
Human rights standards are among the foundation stones of our functioning democracy. If we seek to justify the sacrifice of particular rights in an attempt to safeguard our society, such as the right to a fair hearing, we risk foregoing the very rights that are essential to the maintenance of the rule of law. Equally, if we fail to strike the right balance between national security objectives and respect for human rights standards, we jeopardise the very security we so value.
As the body with a statutory responsibility to ensure the observance of human rights in Australia, much of the Commission's work over the last year has involved vigorously defending human rights standards before the Parliament and the Courts.
The Parliamentary Committee process is the main forum for the Commission to fulfil its statutory responsibilities to assess legislative proposals for their compliance with human rights standards and to foster debate and greater awareness about human rights in the community. The Commission has also contributed to other law reform processes by drawing attention to the human rights implications of proposed changes. This included providing submissions to various stages of the Australian Law Reform Commission Inquiry into the protection of classified and security sensitive information, and the federal Government's Migration Litigation Review. Details of the submissions made to these bodies are contained in Chapter 3 of this Report.
The Commission has actively sought to ensure that Australian law develops in a manner consistent with human rights standards. Our involvement in court proceedings is predicated on the matter involving issues of public importance that extend beyond the parties before the Court. We continue to find that our role in legal proceedings, either as an intervener or as an amicus curiae (friend of the court), is also an important element of our human rights education work, as it demonstrates how universal human rights principles may be applied to resolve issues before domestic Courts.
During the last year, Commissioners were granted leave to appear as amicus curiae in four matters relating to pregnancy and family responsibility, sex discrimination, racial vilification and disability discrimination. Leave was also granted for the Commission to intervene in five matters, thereby assisting the Courts to consider significant human rights issues in the context of immigration detention, children's rights and transgender identity.
Two of these interventions, the Al Khafaji and the Sakhi cases, have been the subject of considerable media attention and warrant special mention. Both cases dealt with the question of whether the Commonwealth can indefinitely keep asylum seekers, both adults and children, in immigration detention. More detailed information about the cases is available in the Commission's legal publication Federal Discrimination Law 2004, and in the Legal Section of this Report.
The Commission's intervention in the Sakhi matter drew upon and complemented the work of the Human Rights Commissioner, Dr Sev Ozdowski, over the last two years on the report of the National Inquiry into Children in Immigration Detention entitled A last resort? Tabled in the Australian Parliament in May 2004, this key report found that Australian laws relating to immigration detention have resulted in numerous and repeated breaches of the Convention on the Rights of the Child. This, together with the finding that nine out of 10 of asylum seeker children in detention end up calling Australia home - because they are eventually found to be genuine refugees children - led the Human Rights Commissioner to conclude that there is no valid reason for the continued detention of children.
Another key document released by the Commission relates to the national consultations that the Acting Race Discrimination Commissioner, Dr Bill Jonas, convened with Arab and Muslim Australians, which we called the Isma Project. These national consultations were set up in response to concerns expressed by Arab and Muslim organisations about the rise in anti-Arab and anti-Muslim prejudice in Australia, set against the backdrop of the terrorist attacks in the United States and Indonesia, and the arrival of growing numbers of asylum seekers from Middle Eastern and Muslim countries.
Both of these publications have promoted significant public discussion about human rights in Australia and continue to foster a deeper understanding of these complex issues. Following their public launch in capital cities around the country, each has been the subject of innumerable media articles, radio interviews and speeches by the Commissioners. The publications are available in hardcopy or CD-Rom form, as well as on our website in a variety of internet applications including summary format. Our Public Affairs Unit has also developed an interactive internet-based teaching module for the Children in Immigration Detention Report for use by schools, and downloadable audio resources for the Isma Project. These enable students to access reliable information and resources on human rights issues to help them ask questions, analyse, debate and, finally, draw their own conclusions.
These online resources complement the Commission's online human rights education modules, such as the very popular Face the Facts - Teaching Resources for use in Australian Classrooms, and the new Bringing them home education module, which was launched at the end of 2003. This latter module provides students and teachers with a range of resources based on Bringing them home: the report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. The Commission welcomes the strong interest teachers have shown in this resource and regards it as a valuable means of educating new generations of Australians about this aspect of Australia's history that Indigenous communities are still coming to terms with.
The success of the Commission's schools program can be measured by the fact that the education resources on the Commission's website have recorded over 460,000 page views in the last year and that more than 4,000 teachers are subscribers to the Commission's regular electronic newsletter.
In addition to these on-line education materials, the Sex Discrimination Commissioner, Pru Goward and I ran a series of 'Human Rights Youth Challenge' programs in secondary schools around the country, addressing the theme of 'tackling sexual harassment in your school'. These forums provided students with practical ways to help them understand their rights and responsibilities and to counter the myths and stereotypes which are often at the heart of discrimination and harassment.
As the Commission's complaints statistics indicate, sexual harassment in the workplace remains an ongoing concern, despite the fact that 2004 marks the twentieth anniversary of the enactment of the Sex Discrimination Act. The findings of Commissioner Goward's benchmark national study, which suggested that as many as 230,000 Australians have been sexually harassed in the workplace in 2002-03, are cause for renewed action on this front. The Commission has an important educative role in this regard, and I welcome the proactive approach Commissioner Goward has taken with employers' groups to advise them of how to meet their obligations to prevent and eliminate sexual harassment in the workplace. I also welcome her determination to tackle the rising tide of pregnancy discrimination complaints with a similar resolve.
The Sex Discrimination Commissioner has also been an active participant in public discussion on a range of gender issues, including the role of men and boys in achieving gender equality, paid maternity leave, access to childcare, and gender pay equity. Together with the Sex Discrimination Unit, she has continued to monitor the trafficking of women in Australia and the Asia Pacific region, and commenced work on anti-trafficking and domestic violence programs as part of the Australia-China Human Rights Technical Cooperation Program.
Whilst the role and functions of the Commission are primarily directed towards human rights issues within Australia, the Commission does have an international education and training role, with a specific focus on agencies in the Asia Pacific region.
Our international role reflects the Commission's belief that helping to strengthen human rights protection in other countries, particularly our regional neighbours, has flow-on benefits for all concerned. Collaboration on human rights issues with other government agencies, civil society groups and national human rights institutions provides a valuable opportunity for the Commission to keep abreast of international developments in human rights and models of best practices that are relevant to the Australian context. This interaction also enables us to share our experience where it is relevant to strengthening the capacity of other agencies and institutions to protect and promote human rights and the rule of law.
The Commission is an active member and supporter of the Asia Pacific Forum of National Human Rights Institutions (the APF), of which we are a founding member. The strength and vitality of human rights institutions in this region is demonstrated by the fact that membership of the Asia Pacific Forum of National Human Rights Institutions now numbers 14 countries. Particular commendation is due to the Advisory Council of Jurists to the APF, which has written an outstanding report on Rule of Law and Terrorism that will be an invaluable resource to all manner of organisations and authorities working on this issue.
The APF, through its member institutions, has also made an important contribution to the development of a draft International Convention on Human Rights and Disability at the United Nations. The Commission has been actively involved in this process from its initiation, and has been well represented by Deputy Disability Discrimination Commissioner Mr Graeme Innes on each of the three official Australian delegations to the UN meetings.
Given that over 40 percent of the complaints received by the Commission concern disability discrimination, the Commission has continued to push for progress on a range of policy and law reform fronts. These include ongoing work with a range of industry, community and government representatives to develop Disability Standards in relation to access to premises, and their extensive contributions to the review of the Disability Discrimination Act by the Productivity Commission. Following this review and the High Court's decision in Purvis v NSW, the Commission is very conscious of the need for significantly more progress to be made in relation to the employment situation for people with disabilities, particularly in the Australian Public Service.
Another area where the Commission has identified the need for urgent progress is addressing Indigenous disadvantage. The final Social Justice Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Dr William Jonas, has been hailed as a blueprint for Australia in this regard. Reflecting on the successes, failures and omissions of government policy and program delivery over the last five years, this report details what needs to occur to ensure an acceptable rate of progress towards addressing Indigenous disadvantage. Complementing this approach, Commissioner Jonas' Native Title Report outlines how the goals of native title policy and those of broader Indigenous policy can be aligned to improve the economic and social conditions of Indigenous peoples' lives.
Commissioner Jonas served as Aboriginal and Torres Strait Islander Social Justice Commissioner for over five years, and as Acting Race Discrimination Commissioner for nearly as long. In both roles he made an enormous contribution to the work of the Commission. His annual Social Justice and Native Title Reports are highly respected for their depth of research, objective reporting and forward-looking recommendations. The Australian community owes him a debt of gratitude. The Commission thanks him, and we wish him well in whatever role he now takes up.
The close of 2003-04 brought with it a number of significant changes for the Commission. With the end of Commissioner Jonas' term approaching, the Attorney-General appointed a new Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma, who will also take on the responsibility of Acting Race Discrimination Commissioner in his first year. Mr Calma, an Aboriginal elder from the Kungarakan tribal group (traditional lands south west of Darwin), will assume these responsibilities in July 2004, and on behalf of the Commission, I welcome him and extend him every support.
Another significant development was the passage of the long-awaited Age Discrimination Act 2004 (Cth). Whilst we raised a number of concerns about the draft legislation during the consultation process and made a submission to the Senate Inquiry into the Bill to seek improvements to the Bill, the Act is a welcome tool for the enforcement of the human rights for those who suffer discrimination on the basis of their age. For the first time, Australia has an enforceable remedy in federal law for people both young and old, who want a better opportunity to be full and active participants in the community. Given the rapidly ageing population, the passage of the legislation is particularly timely.
The Complaint Handling Section continues to play a vital role in fulfilling the Commission's objective of delivering an Australian society in which human rights are protected. Last year the Commission handled more than 9 600 individual complaint inquiries, received over 1 110 complaints, and successfully conciliated over 460 complaints. Despite this volume of work, the clients using the services felt the Commission dealt with their complaint in a timely manner, and 89 percent of parties were satisfied with the services they received.
There are many people to be thanked for their contributions to the work of the Commission. I would like to thank the Commissioners and their staff and the valuable contribution the Complaint Handling Section, Legal Section, and Public Affairs provide to all units in the Commission throughout the year. Outside the Commission, the work of many of its staff is invisible, but without our Personnel, Finance, Record Keeping, Reception, Library, and IT Sections, there would be no Commission.
All these people have worked tirelessly, and I would like to express my sincere thanks to them and to all the staff of the Commission for their professionalism and dedication, and not least for the consistently high quality of their work throughout the year.
In the promotion and protection of human rights both in Australia and internationally, the contributions made by non-government organisations in civil society play a very important role. They are able to bring attention to human rights abuses that would otherwise be inadequately reported, and their depth of experience in particular fields can be invaluable in program planning. The Commission frequently interacts with these organisations, and I would like to acknowledge and pay tribute to their important work in defending human rights and fundamental freedoms.
Finally, I would like to pay tribute to my predecessor, Professor Alice Erh-Soon Tay, who died in April 2004 after a long illness. She was one of those rare people who are able to combine distinguished academic scholarship with active engagement in public affairs. She was both a formidable thinker and a tenacious doer. As such, her term as President of the Human Rights and Equal Opportunity Commission for almost five years was one characterised by outstanding service to the nation. Professor Tay's passionate work as a human rights defender, academic, author and editor remain a source of inspiration at the Commission, and will ensure that she is long remembered both in Australia and internationally.
The Commission remains committed to staunchly defending the rule of law, promoting of the importance of human rights education, and striving to build a more tolerant and inclusive community for all.
The Hon. Philip Ruddock MP
Canberra ACT 2600
I have the pleasure in presenting the Annual Report of the Human Rights and Equal Opportunity Commission for the period ending 30 June 2004, pursuant to section 45 of the Human Rights and Equal Opportunity Commission Act 1986. The report has been prepared in accordance with the requirements of section 70 of the Public Service Act 1999.
The Hon. John von Doussa QC
Human Rights and Equal Opportunity Commission
(c) Human Rights and Equal Opportunity Commission 2004
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The 2003-04 Annual Report is available on the Commission's website at: www.humanrights.gov.au/annrep03_04/
9 September 2004
19 November 2004