Close Combat at the HRC

In August, 2012 , the new president of the Human Rights Commission, Gillian Triggs, took up her five-year appointment. As one would expect from the Gillard government, Triggs, the former Dean of the Law School at the University of Sydney, is an appointee whose political views favour the Labor Party far more than the Coalition. While the Human Rights Commission has not yet published any speech defining her policies and goals, she made her political preferences clear at a 2008 seminar at her university held to welcome the new Rudd government’s commitment to international human rights. Sharing a platform with Rudd’s Attorney-General, Robert McClelland, she spoke of the frustration people like her had with the former Howard government and its “numerous failings” in the field. She had wanted Howard to:

• end Australia’s contribution to the Coalition of the Willing in Iraq

• increase its engagement with the UN human rights committees, particularly by meeting reporting requirements

• ratify optional protocols of human rights instruments such as the Torture Convention and the Rights of Women

• withdraw the boundary reservations to the ICJ compulsory jurisdiction clause

• adopt a Charter of Human Rights

• end mandatory detention of refugees and asylum seekers

• implement human rights treaties directly in Australian law

• support the Draft Declaration on the rights of indigenous peoples

• fully support Australians detained in Guantanamo Bay or other prisons in the Middle East and reject extra-ordinary renditions.

She said it was “gratifying” to learn of Rudd’s endorsement of policies that would end Australia’s relative isolation in human rights. They would “place Australia firmly back on the road to a meaningful contribution to international human rights law”.

Although her publications and interests are more in international law and governance than domestic affairs, the organisation she now heads has a structure that commits it firmly to local interest group politics. Sitting beneath the president are six commissioners, all tied to particular interest groups:

• Aboriginal and Torres Strait Islander Social Justice Commissioner

• Age Discrimination Commissioner

• Disability Discrimination Commissioner

• National Children’s Commissioner

• Race Discrimination Commissioner

• Sex Discrimination Commissioner

This is anti-discrimination overkill. The notion that Australian discrimination in any of these areas is sufficient to warrant a dedicated commissioner plus an entourage of bureaucrats and consultants, not to mention dedicated ministers and separate public service departments at both the federal and state levels, is absurd. This country bends over backwards to do the best it can for the members of all these groups. And wherever it fails to do so, exposure in the news media is a far more effective and speedy antidote than the lumbering processes of bureaucracy.

Indeed, freedom of the news media to do its job without hindrance should be one of the principles that a proper human rights commission should fight to uphold. But the organisation that Triggs has inherited has become part of the problem. It was the HRC that took Andrew Bolt to the Federal Court for racial vilification. Last month, following a call by the National Congress of Australia’s First Peoples to make it easier for claims of racial vilification to be made, the HRC’s Aboriginal Social Justice Commissioner, Mick Gooda, publicly supported them. The congress wants third parties like itself to be able to launch Federal Court action and to open up a new class of racial vilification legislation.

The worst offence of the Human Rights Commission was to publish its 1997 report, Bringing Them Home, which accused successive state govern­ments from 1910 to 1970 of committing genocide against the Aborigines by stealing their children. It also claimed that in the 1970s and 1980s, when the Commonwealth was responsible for Aboriginal affairs, its policies were “arguably genocidal”. The commission, however, lacked the courage of its convictions and failed to recommend that any of the responsible state and federal ministers over this period be put on trial. Its finding was both irresponsible and mendacious. To demonstrate this, one only has to list the names of the former Commonwealth ministers for Aboriginal affairs still living when the report was presented: Peter Howson, Billy Wentworth, Les Johnson, Ian Viner, Fred Chaney, Peter Baume, Clyde Holding and Gerry Hand. To anyone familiar with the careers of these people, the accusation of genocide is barking mad. Moreover, in failing to recommend any prosecutions against them, the HRC itself wilfully ignored the 1948 UN Convention on the Prevention and Punishment of Genocide: “Article 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

Given that Gillian Triggs is so keen for Australia to make a meaningful contribution to international human rights law, her first task should be to investigate her own commission for its failure to do its duty under Article 4. Either that, or make a long-overdue public apology to all those who were so seriously defamed by the Bringing Them Home report.

No one should hold their breath waiting for either outcome. The hypocrisy and unreliability of this organisation know few bounds. Just before Triggs took over, the news media exposed the HRC telling another big lie. A report about consultations for its National Anti-Racism Strategy claimed Aboriginal students in Kalgoorlie were placed in segregated classrooms and prevented from walking around in groups of more than three. None of the guilty schools were named and no source provided. Contacted by Stuart Rintoul of the Australian, the executive director of the West Australian Education Department and the man directly responsible for Aboriginal education, Peter Titmanis, said, “This claim is bizarre and I have never heard of anything like it happening at a public school.” HRC Race Discrimination Commissioner Helen Szoke told Rintoul that although she could provide no information about the circumstances, she still found the report’s claims “concerning”.

The HRC is plainly an organisation with no qualms about beating up evidence to justify its own existence and empire-building. Its website could pass for a parody of a nanny state instrumentality trying to worm its way into the lives of every social group it can think of.

Among its many targets are business people. It warns them of their human rights responsibilities to ensure good housing, clean water and an adequate standard of living for their employees and neighbours, as if they had secret goals to undermine them. It warns them of their responsibilities to provide safe and secure worksites and to prevent and redress industrial accidents, as if Australian employers were not already subject to the most onerous occupational health and safety regimes in the Western world.

The HRC also warns business that simply obeying existing federal and state laws is not good enough: “an Australian company that complies with Australian laws does not necessarily satisfy all its responsibilities to respect human rights. In some cases, businesses need to go beyond domestic laws if they do not reach the level, or cases conflict with, international human rights standards.” It tells business that, while a number of its recommendations to government have not yet been enacted, they should comply with them anyway, since the government takes its cue from the HRC on business-related human rights abuses and its principles “are therefore likely to inform domestic legal and policy standards applicable to business in the future”.

The HRC even thinks it knows best how Australian sportsmen and women should behave. It has produced a website called Play By The Rules to tell administrators, officials, coaches, players and parents their responsibilities under human rights laws and conventions. It gives gratuitous advice about fair play and fair selection which anyone seriously engaged in sport would know full-well already.

One particular sentence caught my eye: “You have the right to not be unfairly discriminated against by decisions made by your club or association (e.g., decisions about membership, selection, access to facilities and equipment).” This brought to mind the case of the cricketer Denise Annetts, who in 1994 failed to be selected for the Test series against New Zealand. Yet she was in great form and had a batting average second only to Don Bradman of 81.9 runs in Test matches, with a top score of 193 against England, a world record for women’s cricket. What made this an even bigger news story were the reasons Annetts gave for her omission. She said that because she was heterosexual and married, the lesbians who dominated the Australian team did not like her and wanted her out. But when she took her case to the New South Wales Anti-Discrimination Commission, its officers said the relevant Act did not apply to her; the Commission could only act on complaints from minority interest groups such as ethnics, Aborigines and gays. No laws prevented homosexuals from discriminating against heterosexuals. Annetts gave up her attempt at selection and retired from the sport. Without her, Australia lost the subsequent Test series against New Zealand, two matches to one.

Faced with a similar conflict, the track record of the Australian Human Rights Commission provides no assurance that its discrimination commissioners would act any differently. They have built their careers and their mindset not on universal human rights but on interest group rights or, more accurately, interest group interests. If the new HRC president can turn this dysfunctional organisation around, I will be very surprised.