Chris Sidoti recounts the context for the establishing of the AHRC, (formerly called the Human Rights and Equal Opportunity Commission) and records the frequent conflicts over the years between the AHRC and the government of the day.
This is an edited first half of the speech. The second half will appear in the next P&I.
It’s important to remember history. This Commission, whose 30th anniversary we celebrate on the 10th of December 2016, was not the first human rights commission in Australia. It had a predecessor established 35 years ago in 1981. During the 1970s, the Whitlam Government had attempted to introduce a bill of rights and had quite spectacularly failed. But the commencement of ratification of international human rights treaties raised the question for Australia of how to perform our obligations under those treaties without a bill of rights. In the absence of a bill of rights, the Fraser Government decided in 1981 to establish a human rights commission responsible for monitoring the performance of international human rights obligations.
That first commission was led by Dame Roma Mitchell, one of the torch bearers for women in Australia, and particularly women in the law. The Commission had a sunset clause in its legislation which provided for a five-year demise. During the years before that termination date, there had been further failed attempts to enact a bill of rights for Australia. As late 1986 drew near, again the approach of having a human rights commission to take responsibility for international law was seized upon then by the Labor Government as the next best alternative to having a statutory bill of rights. They came across the new idea of annexing to the legislation some of the key international treaties so the treaties had some form of quasi-legislative endorsement. That was controversial.
The then opposition opposed this tooth-and-nail throughout the latter part of 1986. The legislation didn’t pass until the 28th of November in the Senate and the 3rd of December in the House of Representatives, it was assented to on the 6th of December, the first commission disappeared on the 9th., and this commission began on the 10th. Nonetheless, the battle over the commission wasn’t quite over. In 1987 the Howard-led opposition went into the election with a policy of abolishing the commission. And the Peacock-led opposition did the same in the election in 1990. The change of mind by the Coalition parties only resulted from more liberal leadership under John Hewson so that in 1993 the Coalition parties committed to the continuation of the Commission.
The Commission started its work at the end of 1986. It wasn’t long before it ran into trouble with the Labor Government that had established it. The first big tiff was in the debate about a proposed ‘Australia card’. This was a proposal to establish an identity card for all Australians. The Government were firmly committed to it and the Commission gave the advice that the enactment of legislation for an ‘Australia card’ would be a violation of international human rights obligations. That advice was not well received. The then Human Rights Commissioner Brian Burdekin was confronted by the responsible minister and invited to resign. The ‘Australia card’ was not adopted and instead we got a Privacy Act.
The question of discrimination was there from the beginning, as was the question of whose rights anti-discrimination law existed to protect.
Soon after the Australia card debate, the Sex Discrimination Commissioner, Quentin Bryce, received a complaint that women’s health services violated the Sex Discrimination Act. She rejected that complaint on the basis that women’s health services represented a special measure for women, reflecting the disadvantage that they experience in health. When she came to that decision she was roundly vilified in the News Limited media. The vilification worsened when some private comments she had made about the nature of these kinds of complaints found their way into the public domain through freedom of information legislation and then it was on – calling for, demanding her resignation. Quentin Bryce seems to have survived that scandal.
Two years after that, Brian Burdekin completed his national inquiry into mental illness. This was the third national inquiry undertaken by the Human Rights Commission. The process of national inquiries undertaken by this commission has been one of the most successful processes and has been emulated now throughout the Asia-Pacific region. But Brian’s inquiry into mental illness was not always quite so well received. After his report was released in 1994, a cabinet minister in the then Labor Government suggested to him that he should take arsenic.
I became Human Rights Commissioner in August 1995 and one of the first responsibilities I had was to handle complaints dealing with asylum seekers. I had previously been the first secretary of the Human Rights Commission and in August 1989 I had made a visit to the first detention centre for boat arrivals, in a scout camp outside Darwin where the first boatload were being detained. The Commission began talking in August 1989 about the treatment of asylum seekers. When I returned as Human Rights Commissioner in 1995 this was still an issue. When handling a complaint, I sought some documents from the government and the government declined to provide them.
I issued an order for their production under the legislation and the order was rejected. Because of the significance of this decision by a Federal Minister (a Labor Minister), I made the decision to commence action in the courts for a writ of mandamus to enforce the order that had been issued by the Commission. The minister was not impressed, and decided to fight the application to the courts in a way that took us by surprise. I would have thought there wasn’t much legal basis for an order of the Commission, issued under the legislation, to be challenged. But the challenge was made on the basis that I had acted in bad faith. I recall the Senior Council representing the Government at the time, David Bennett, later the Solicitor General, in cross-examining me in that case, commencing this part of the cross-examination by saying “I would like to state before I commence that I am undertaking the following cross-examination on explicit instructions from my client”. Lawyers will understand what that means.
To be continued in Part 2 tomorrow..
Chris Sidoti was Foundation Secretary of the Human Rights and Equal Opportunity Commission 1987-1992 and Human Rights Commissioner 1995-2000
He is a consultant on the establishment of human rights institutions in the region