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.

Peter Fray

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