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IPA is right, Human Rights Commission might have to go

The Human Rights Commission shouldn’t be fully abolished — but it should lose some of its functions if it won’t be more consistent in the rights it advocates for.

Yesterday the Institute of Public Affairs went one better than calling for major changes to the government’s draft bill consolidating anti-discrimination legislation, and called for the Human Rights Commission to be abolished entirely  —  on the basis it selectively defended particular rights and had “demonstrated hostility to freedom of speech, freedom of association and freedom of religion”.

The IPA has a point, and it’s one worth exploring.

Under its act, the Commission has three basic functions: to provide a mechanism for people to use anti-discrimination laws, who might otherwise be left to rely on regular court action; to monitor government actions, laws and bills to determine if they breach human rights; and an advocacy role for human rights — to undertake inquiries into, pursue public education about, lobby for and promote human rights.

Because the Commission only has one budget outcome and one output, however, it’s impossible to get a clear understanding of how its resourcing falls between those different functions. But outright abolition would of course eliminate all three functions, and therein lies the problem for the IPA proposal.

The Commission received about 2600 complaints last year across the areas of racial, s-x, age and disability discrimination or separately under the act itself. It resolved about 48% via conciliation. Without the AHRC, those complaints would either have had to be pursued via the Federal Court or Federal Magistrates Court, or not pursued at all because of cost (although employment-related complaints could, perhaps, be moved to Fair Work Australia).

That’s no loss for the proportion of complaints the Commission dismisses as vexatious or frivolous — between 1% and 5%, depending on the relevant discrimination act. And there’ll always be wingnuts, fanatics and eccentrics who will try to use the Commission. For example, the new “president” of the anti-immunisation group AVN, Greg Beattie, tried to use the Commission in 1995 to force a local childcare centre to take his unimmunised children (the Commission dismissed his complaint; the report is well worth a read).

But such cases are in the minority: the bulk relate to real forms of discrimination, frequently in the workplace; abolition would thus be problematic in terms of access to justice for people who, by the very nature of the issues concerned, are likely to lack the resources to access the legal system. The biggest single area of complaints handled by the Commission, for example, is discrimination under the Disability Discrimination Act; about half of disabled Australians live in or near poverty levels, making taking legal action highly problematic.

The Commission’s watchdog role on government in relation to human rights has less direct benefit, but notionally provides independent oversight and accountability — a role that again would have to be taken on by the courts, and litigants, if the Commission didn’t provide it, and with much less consistency than it currently does.

The Commission has little to say in defence of free speech — and when it does it’s not pretty.”

It’s the Commission’s advocacy role that is the real problem. In exercising its tribunal function in handling complaints, the Commission is bound by statute: Parliament has identified the rights it wants the Commission to protect. In its advocacy role, the Commission has a much freer hand.

This necessarily means a degree of selectivity. The Commission’s establishing act makes the International Covenant on Civil and Political Rights the core of the human rights it intended to protect and promote. That document lists dozens of rights, some of which potentially directly contradict others: the right to freedom of expression clearly has the potential to breach both the right against arbitrary interference with privacy, and the Covenant’s demand that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

The most obvious outcome of this advocacy freedom is that the Commission bluntly states on its website that “securing an Australian charter of rights” is part of its mission. This is a blatantly anti-democratic position: both major parties have long and repeatedly made it clear they do not support a charter of rights. Charter advocates may not like it, but the clear view of the overwhelming majority of elected officials is against a charter of rights. Yet the Commission is spending taxpayers’ money advocating it.

Moreover, as the IPA notes, the Commission does indeed seem to regard free speech as a lesser priority than other rights. The Commission has little to say in defence of free speech — and when it does it’s not pretty. In 2010 when the Commission declared that it had jurisdiction over the entire internet, telling the owner of a website hosted in the United States, responsible for some racist, juvenile material about Australian Aboriginal people, that the Racial Discrimination Act actually applied offshore.

And the Commission supported the government’s exposure draft of the Human Rights and Anti-Discrimination Bill 2012, endorsing the extension of the current, outrageous ban on speech that “offends” or “insults” to other forms of discrimination, although since then Commission president Gillian Triggs seems to have changed her mind.

But by formally endorsing the bill, the Commission entirely abrogated its role as a human rights watchdog on government legislation.

Perhaps the Commission takes the view free speech is primarily a right of the powerful, of privileged élites, and therefore there is less need to protect it. That is to an extent true, and one of the most privileged élites, the mainstream media, frequently invoke the right to free speech as a protection against scrutiny and accountability. But all rights are the same in that regard: as long as resources are needed to protect or enforce rights — usually via legal action — the powerful and the wealthy will have an advantage in doing so, and will seek to exploit their rights at the expense of others.

If the Human Rights Commission can’t guarantee it will fulfil its advocacy and monitoring roles even-handedly in terms of the human rights it is required to protect and promote, then there is indeed a case for abolishing those functions, and leaving the Commission to simply carry out its most critical role: providing access to legal protections for people who will struggle to access them by any other means.

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  • 1
    Posted Friday, 25 January 2013 at 3:22 pm | Permalink

    Of course absolute statements conflict: the aim is to find a decent compromise. The UDHR, the founding human rights document, ends with (paraphrased) “no right stated here may abrogate any other”.

    Statements of rights establish the goalposts, and we kick towards them. That’s why a Charter of Rights would be an asset to the Australian people, even if the ALP and LNP see it as threatening their long-established power.

  • 2
    Hunt Ian
    Posted Friday, 25 January 2013 at 4:05 pm | Permalink

    Bernard wants to abolish the advocacy role of the HRC if it cannot “guarantee” that its advocacy will be even-handed. You won’t get any even-handed assessments of whether this demand is met. Bernard rightly says the HRC should first make sure it is effective in providing access to protections for people who cannot get it without help but then advocacy is important too.

    Protections of rights, even basic rights, are bound to conflict. As advocates, the HRC should explain why this is so and argue for a good lot of constraints on each right so that the government task of protecting these rights can be consistently pursued. Of course, freedom of expression is a basic right which can be protected consistently with other rights only if it is restricted to protect other basic rights such as privacy and freedom of association.
    It is a right largely enjoyed by the wealthy in our society. This is not a reason for the HRC to ignore its protection but a case to ensure that they protect it for people (most of us) who cannot enjoy it without help. This means that MSM, whose owners enjoy the right of freedom of expression should have the responsibility of being effectively required to publish with the same salience corrections of what they say where there is a good case that they have got something wrong that is important to others.
    Why Bernard wants to tie the issues here to what the IPA says is a mystery. The IPA is consistently opposed to anything that limits the power of money to determine an outcome. Its opposition to the HRC is not at all surprising, just as it is opposed to environmental protections, etc etc.

  • 3
    Warren Joffe
    Posted Friday, 25 January 2013 at 5:27 pm | Permalink

    The contortions which high-minded, eloquent Jews (even including Ron Merkel despite his shameful invoking of the Nazi tag in the Bolt case)in reconciling their consciences with, to point to only the most obvious sources of cognitive dissonance, what Israeli governments, settlers and the IDF have done to Palestinians and a genuine support for civil liberties and human rights since the Holocaust (and even before with qualifications and blurred edges to the picture)seems peculiarly likely to result in fervour for Aboriginal causes, so it would be nice to know why Merkel, for one, hasn’t picked up the vicious satire against Arabs in http://www.quadrant.org.au/magazine/issue/2010/6/monologue-of-a-jewish-peacenik
    As, unlike the author, who disdainfully rejected the likelihood of his having any Arab friends, I do, and, if they weren’t much more solidly grounded in stable personality and respected occupations than Merkel’s clients I would be inclined to push them into making complaints under Sec 18C of the Racial Discrimination Act.

    And, if Merkel isn’t up to it, what about Ms Bahrendt (married after all to a former Attorney-General of Australia) or one of his other prominent Aboriginal clients? After all one doesn’t want to force the unfortunate insulted Arabs to have to demean themselves by claiming victim status for themselves.

  • 4
    kraken
    Posted Friday, 25 January 2013 at 6:19 pm | Permalink

    Whilst I get BK is a rabid free speech-er, to endorse the IPA position on the HRC is gob-smacking. The IPA represents vested corporate interests whose notions of free speech extend only as far as enabling these same corporations to prosecute their business plans ruthlessly and to shaft anyone who gets in the way! What is meant by ‘even-handedly’? Is this the same ‘even-handedness’ that sees rigourous analysis compromised by tortured notions of ‘balance’ in the media such that IPA mouthpieces are routinely invited on our public broadcaster to spruik their social Darwinism; and sees the ‘human rights’ of a nasty so & so who bullies and besmears for political gain or other base motives automatically protected. ‘Freedoms’ without responsibility and accountability are not really freedoms but a license to violate and abuse, especially when these ‘freedoms’ are exercised by powerful individuals and groups. Bring on the Charter please!

  • 5
    Serenatopia
    Posted Saturday, 26 January 2013 at 11:58 am | Permalink

    This is an extract from apsbullying.com, which is very relevant to this story and based on actual evidence collected on the conduct of AHRC officers:

    The AHRC has written some excellent information documents about each piece of discrimination legislation (which also discusses vicarious liability), practice and procedure, damages and remedies, and costs awards at the AHRC website.

    In order to minimise any angst and frustration in consuming the services of the AHRC, it is probably beneficial not to have high expectations of the AHRC’s usefulness. Whilst there is a mix of positive and negative feedback about the AHRC, be mindful that there is a chance that the AHRC will:

    1- drag out the process between 3 to 12 months;
    2- not provide enough assistance in helping you understand how to make a complaint and other processes involved so that your interests are fully protected;
    3- not engage in adequate or effective communication;
    4- give wrong advice;
    5- refuse to deal with complainants’ advocates if they are not paid lawyers;
    6- not adequately understand the stresses involved when complainants seek formal redress for workplace mistreatment against a powerful opponent - which can lead AHRC officers to make unfair negative judgments of you and even treat you in a disrespectful manner;
    7- not adequately address the power imbalance between you and the respondent APS agency in order to strive for true impartiality on the AHRC’s part;
    8- favour the respondent APS agency’s preferred method in dealing with a complaint over your preferred method, such as refusing a request for a shuttle conciliation conference.

    In some cases, the AHRC can unfortunately do more harm than good. Sometimes this is due to limited legislative powers or under-resourcing. Other times it can be due to a lack of appropriate selection of candidates to fill AHRC positions or inadequate training of AHRC officers.

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