18C Report Raises Questions about Joint Committee on Human Rights’ role

The Parliament’s Joint Committee on Human Rights (JCHR) wasn’t always as equivocal and uncertain as yesterday’s report on s 18C of the Racial Discrimination Act 1975 (the RD Act) makes it seem. However, the JCHR’s role as one of the few Commonwealth bodies with a human rights mandate is becoming questionable.

First, I will discuss the 18C inquiry and its findings, then I will explain what I mean about the JCHR’s evolution.

 

What was the inquiry about?

In response to continual calls for removal of the threat to Australians’ freedom of speech represented by s 18C of the RD Act,  Prime Minister Turnbull at first said (rightly) that the Government had more important issues to deal with, but eventually relented and referred the issue to the JCHR.

For those who have managed to avoid the rancorous public debate over s 18C, it all kicked off nearly 6 years ago after Andrew Bolt was held to account for attacking ‘fair-skinned’ Indigenous people in print. It has been bubbling away ever since, driven by those who are pursuing the Institute for Public Affairs’ agenda for the Coalition Government (repealing s 18C comes in at #4 on that agenda, above such shibboleths as ‘break up the ABC’ (50) and ‘immediately halt construction of the NBN’ (69)). More recently, Government criticism of the Australian Human Rights Commission’s (AHRC’s) handling of a discrimination case against students at the Queensland University of Technology has kept the issue front and centre.

Accordingly, the JCHR was asked to review whether the Part of the RD Act which includes 18C ‘imposes unreasonable restrictions on freedom of speech, and in particular whether, and if so how, ss. 18C and 18D should be reformed.’ It was also asked whether AHRC complaints procedures needed reform ‘to protect freedom of speech’.

 

Did the JCHR recommend repealing 18C?

The JCHR’s first recommendation was to educate Australians better on racism and the scope of the RD Act. Its second recommendation was that politicians exercise their freedom of speech more constructively (ie show some leadership) to condemn public racism. So far so good.

The third recommendation addressed 18C and associated sections of the RD Act. Instead of setting out a consensus or even majority view, it listed six reform options which ‘at least one member of the committee’ backed, the first of which was to do nothing. The other suggestions were relatively moderate – mostly calling for clarification of how s 18C should be interpreted. They certainly did not include ‘repeal 18C’ which clearly disappointed some in Government.

 

Why didn’t they just recommend scrapping 18C?

Given the JCHR’s membership, which includes a majority from a Government with vocal elements still champing at the bit for change and a former IPA employee, one might have expected it to come out more strongly against s 18C. However, this would have been inconsistent with the bulk of evidence received, which was about the need for the Government to take a strong, active stance against racism.

The JCHR (keeping in mind that its role is actually to improve the human rights compatibility of legislation) said that it did ‘not intend to signal acceptance of any licence for racism in Australia.’ However, the curious formulation of its various 18C-related recommendations as ‘supported by at least one member’ is also explicable in the context of the JCHR’s history in scrutinising legislation.

For the first couple of years of its operation (2012-14), the JCHR only delivered consensus reports, in line with the practice of the other parliamentary legislative scrutiny committees. However, in 2014 the consensus broke down – despite the Chair’s objections – and reports began to contain conclusions such as ‘some members considered X; other members considered Y.’

Former JCHR Chair Philip Ruddock, when he took the helm in 2015, actively encouraged a ‘diversity of views’ in the JCHR’s reports – an approach which appears to have been continued by current Chair Ian Goodenough. Arguably, these latest recommendations on 18C, which have been called ‘Clayton’s recommendations,’ are just another manifestation of the Ruddock approach. As former Chair Dean Smith noted, such equivocation and division risks undermining the ‘legal and technical credibility’ of the JCHR’s work, which should be about human rights compatibility and not party politics (for which members have plenty of space to debate away from the JCHR).

In the wash-up, the JCHR’s recommendations on 18C present the Government with perfectly reasonable options. However, perception is important in politics, and failing to reach a firm conclusion will enable both sides of the 18C debate to ignore the JCHR’s contribution, just as the Government[1] and Parliament have largely ignored its other reports.

 

Were there any other recommendations?

The JCHR also made several recommendations for reform of the AHRC’s complaints handling, aimed at limiting ‘frivolous’ complaints with ‘no reasonable prospects of success’.  This was expected, but the recommendations are surprisingly wide-ranging, including appointing a part-time judge to the AHRC to watch over things and punishing unworthy applicants with costs orders.

Most interestingly, at least to me (having studied the JCHR intensively over the past few years for my PhD), the JCHR recommended that it become an oversight committee for the AHRC. It would have public meetings twice a year to ‘examine the Commission’s activities, including complaints handling, over the preceding six month period.’

 

Who is on the JCHR? Is it a good idea to have it oversee the AHRC?

The JCHR is made up of five members from the governing Coalition, four from the Opposition (ALP) and one from the Greens. It is, as discussed, an ostensibly bipartisan committee tasked with scrutinising Commonwealth legislation for human rights compatibility. However, its ‘bipartisan spirit’ has been largely absent since 2014, making it more like a typical parliamentary policy committee.

The AHRC is the Commonwealth statutory agency which takes rights-related complaints and educates the public about human rights generally. The accountability arrangement to date has been that it ‘report[s] to the federal Parliament through the Attorney‑General.’ This is consistent with its governing Act, which requires the Attorney-General to table the AHRC’s reports in Parliament.

However, although the AHRC is technically already accountable to Parliament, a more direct oversight arrangement (with public hearings) would represent a major clamp-down and vote of no confidence. Interestingly, the international principles relating to National Human Rights Institutions actually recommend the involvement of parliamentarians. However, they also recommend adequate, guaranteed funding and a stable mandate, both of which could be under threat if the AHRC were subjected to a public grilling over every complaint it handles. Anything the parliamentarians didn’t like the sound of would no doubt form a pretext for further de-funding and undermining of the organisation.

The case for oversight of all of the AHRC’s complaints-handling has not been made. Despite claims to the contrary, recent cases such as those of the QUT students and cartoonist Bill Leak do not prove that there is a systemic problem. Claims under the RD Act constitute only a minority of complaints to the AHRC (21% in 2015‑16), yet they absolutely dominate the public controversy. A survey conducted by the AHRC in 2015-16 showed that 94% of the involved parties surveyed were satisfied with the handling of their cases, and even more respondents rated the service as ‘very good’ or ‘excellent’ than complainants. The number of service-related complaints made directly to the AHRC over the same period?  Just one.

In isolation, parliamentary oversight for the AHRC might be a good thing – accountability and transparency are inherently desirable. However, considering the fraught political context, I am concerned that this could be another attempt to denigrate the AHRC’s work unfairly, and to minimise consequences for those who fail to respect others’ human rights.

[1] This was a finding of the author’s recently-submitted PhD thesis.

 

Photo credit: John Englart (Takver) / Foter / Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0)

11 comments

  • Sorry just saw Renuka’s comment. I’d say ‘even with a majority endorsement, why should we care?’ The Committee isn’t making rulings on international law, nor is it equipped to, but drawing attention to issues raised by international HR law and relevant tests. Not sure how you can get much more than that from the PJCHR’s ‘statutory mandate’ – to ‘examine’ Bills ‘for compatibility’ and to report on ‘that issue’. How does that require the Committee to make a thumbs up / thumbs down vote on every Bill? (Maybe there’s more in the EM or 2R? I haven’t looked.)

    As for law reform bodies that have presented shopping lists, there are some pretty well known examples in the HR field: notably, the National Consultation Report that (kinda) led to the PJCHR, where the Consultation Committee recommended either a full HR Act (supported by a majority) or a scattering of provisions (supported by a minority, i.e. one member – Brennan?); SARC did the same in its final recommendation on the 2011 Charter inquiry (to avoid a minority report) and you could argue that the ALRC’s traditional and freedoms inquiry did a smorgasbord too – it certainly dodged compatibility findings, including on 18C.

    Regardless, I completely doubt the capacity of anyone other than a court to assess 18C for compatibility. It’s a classic balancing exercise, which HR law provides NO useful tools to resolve. What would we learn if the PJCHR said that 18C did or didn’t go ‘too far’ in favour of race discrimination rights? Far more useful for it to identify possible options to inform general debate. Indeed, I’d say that, while scrutiny committees have lots to offer when it comes to HR details in bills, they have little to offer (politically, legally, or otherwise) when it comes to major HR controversies, like s18C.

    • My turn to see this late, sorry. I would think that it’s precisely when it comes to issues like 18C that parliamentary mechanisms for rights protection like the PJCHR (should) come into their own. Saying that only courts have the capacity to make compatibility assessments – especially for issues that involve
      ‘a classic balancing exercise’ – seems to me to be directly at odds with dialogue models of hrs protection, which are all about sharing that responsibility across the three branches of govt. Isn’t the idea to reduce (any real or perceived) democratic deficit by recognising (and legitimising) the potential for differing perspectives on compatibility? And besides, haven’t arguments against juridification always centered on the competence of courts to make those calls?

      My reading of the PJCHR’s mandate (to examine and report on compatibility) is that it is the opinion of the PJCHR as a committee, which is required by both Houses, not the views of individual members. Ideally that opinion should be unanimous – because let’s face it, the PJCHR’s only real clout depends on demonstrating cross-party agreement on contentious issues. But failing unanimity, the majority view should represent the committee’s opinion. The challenge for the PJCHR is to figure out how to give expression to informed dissent (as opposed to routine partisanship, which should have no place in the committee’s work) in its reports without compromising consensus. SARC perhaps presented one way of achieving that in its 2011 report by endorsing both majority and minority views and giving govt a road map for dealing with both sets of views. The PJCHR’s 18C recommendations on the other hand provided no such aids. Had it presented a view on compatibility, it would have given weight to its recommendations. As it stands, while the report reproduced all the available evidence faithfully, in the absence of the committee’s hrs analysis of that evidence, there was nothing new or useful about the options it identified for reforming 18C – whether for informing public debate or for giving govt a principled way forward. (As for the NHRCC and ALRC reports, while they contained shopping lists, they were nevertheless shopping lists that were set out in consensus reports. So not sure how they are good examples of what we’re talking about.)

      • Yeah, ok, capacity wasn’t a great word. I meant institutional capacity – appointment, advocacy, voting, transparency and appeals – that allow courts to make final calls on touch cases. No-one thinks that Ministers’ human right assessments in SoCs are rulings on international law, and nor should anyone treat committee reports that way. And noone thinks parliamentary enactments are a human rights ruling either. The rights dialogue is between very different institutions with different roles, so there’s no reason for then to use the same conversational tics.

        For what it’s worth, I think in practice that SoCs are what the government would advocate to a court, Committee reports are what a court or opponent would ask/raise in response, and – if the system allows – declarations are the courts’ ruling. I don’t see anything in the HRPS Act – or in dialogue theory – that says that committees should speak in one ‘voice’, by vote or otherwise, when identifying issues for ministers up respond on or MPs to consider. Amongst other things, such an approach makes it hard for members to include differing views or takes without formally dissenting (something that our partisan system makes quite costly for government members.)

        On 18C, I’m not sure that either ‘rights committee says 18C breaches law’ or ‘rights committed says 18C required by rights treaty’ would achieve other than an inevitable editorial in the Oz. But ‘rights committee can’t agree on 18C but agrees on procedural reforms’ is kinda a counter to the Oz and its antagonists, which is no bad thing.

        The push for ‘rulings’ ftom parliamentary committees comes. I think, from advocacy groups that want to use the committees as their own megaphone. But that’s no part of the rights dialogue. Those groups can join in in plenty of other ways.

        • That’s an interesting way of looking at it. But dialogue models put parliament in the driver’s seat, not the courts, so I’d say it would be more useful to orient SoCs and committee reports to parliament’s role, rather than a court’s. After all, their purpose is to increase parliamentary control, not executive or judicial control, over whether legislation is fit for purpose in human rights terms.

          Expecting the PJCHR to provide an authoritative view on compatibility for the purpose of informing/supporting parliament’s legislative role is not elevating its findings to the status of a ruling on international law. The authority of its reports comes from its parliamentary status, its location within the parliamentary legislative process, and the deliberative methods that underpin its work. It isn’t just another body commenting on the human rights implications of legislative proposals. As the parliamentary body specifically tasked with making those assessments, its reports must set the terms of debate on hrs in parliament, otherwise what would be the point? I can’t see how the PJCHR can do that effectively if it doesn’t speak in one voice. Yes, that makes it a hard(er) task, given the inherent sensitivities of a human rights mandate, and given strict party discipline, etc, but it’s not impossible. In fact, the latest PJCHR report tabled today is an excellent example of how to do that, see Part 2 generally, and comments on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill/Act 2016 in particular.

          • I agree that the PJCHR is there for parliament (dunno about the rest of the dialogue) but its terms of reference are external laws, which inevitably draws the courts into the picture. The UK JCHR talks about what courts would rule, so I’m not sure that the PJCHR Is any different. Today’s report on terrorism detention is a great example: notice how the PJCHR relied heavily on UNHRCom rulings in reaching its conclusion. I don’t think any committee (or even court) gets its authority from statute, location or process; authority is hard earned (and easily lost unless a body picks its fights.) As for setting the agenda, isn’t that what the PJCHR has done on s18C, in light of today’s events?
            (Thanks for the interesting conversation! Is anyone else reading this, I wonder?)

          • Hello Renuka and Jeremy. I am following the discussion avidly but I’m having a great deal of trouble commenting (already lost 2 comments due to various IT issues).

            Anyway, thanks for enlivening my post.

  • One of the matters that arises from the JCHR review that has received comparatively little attention (though you mention it yourself in passing) is the matter of introducing financial impediments to the lodgement of claims.

    My own perspective on the RDA is that there are not too many actions undertaken using the RDA, but far too few. Those who would benefit most from more effective application of the Act are the many thousands of desperately poor Indigenous Australians, especially in, but certainly not limited to, remote Australia, for whom blatant racial discrimination and abuse are still simply a “taken for granted” daily impediment to the enjoyment of life.

    Sadly, lodging claims about such abuse is already extremely difficult for those in remote areas. Adding new burdens of lodgement fees and guarantees of payments of legal fee for the other side will simply turn the “extremely difficult” into the “utterly impossible” for most such people.

    The real “reforms” needed to make the Racial Discrimination Act more workable involve better accessibility for such victims and better resourcing of those supporting them. The great “con” in the recent conservative campaigns about the RDA has been the suggestion things have gone “too far”. The simple reality is, when it comes to stopping daily! racial discrimination and abuse of people in the most need of its protection, it, and associated support processes, don’t go nearly far enough

  • I think it’s wrong to expect unanimity from the PCJR on all issues and to label it ‘partisan’ if it doesn’t reach consensus. The PCJR does reach unanimity on many issues (including reports that criticise government bills), but human rights law doesn’t always yield one answer. My personal view is that18C/D is clearly an issue on which many people can have reasonable differences (including, in my experience, many human rights academics), so we shouldn’t be surprised, or concerned, if the PCJR also splits on reform options (noting, of course, that it reached clear majority views on all the procedural issues.) As well, I think it’s dangerous to compare the PJCHR’s regular scrutiny role for bills (which is limited to ‘examin[ing]’ bills ‘for compatibility with human rights’) and its role in referred inquiries (which is to ‘inquire’, here on a term of reference that asks not just about compatibility but reform. Many law reform bodies fulfil that role by setting out options, rather than a single recommended approach. Moreover, it’s quite possible that more than one – perhaps many – reform options will be consistent with human rights; if so, why should the PJCHR have to select one?

    • Thank you for your comment Jeremy. I take your point on the difference between the Committee’s scrutiny function and this reform-oriented inquiry. I didn’t acknowledge it sufficiently above. However, I still believe the way it has been reporting in its scrutiny role is problematic.

    • I think it’s wrong not to expect consensus from the PJCHR – not because it’s what other scrutiny committees do (as Adam suggests), but because anything less is a fail in terms of its statutory mandate. The unanimous reports of the first two years were achieved not because the committee modeled itself on the Senate’s scrutiny committees but from close attention to its particular mandate. As you point out, hrs law doesn’t always yield one answer. The key – to paraphrase Murray Hunt – is to produce reports that are legally sound AND capable of commanding a consensus on the committee.

      And sure, s7(c) inquiries will be guided primarily by the relevant TORs, (subject to the definition of human rights in the HR(PS) Act). In this instance TOR 1 went directly to the question of compatibility – so it should have been familiar ground for the PJCHR. But where was the PJCHR’s assessment of 18C/D’s compatibility with hrs? Absent that assessment, how are we supposed to understand its proposals for reform? Are they intended to fix an identified incompatibility, improve compatibility or what? It may also be that the reform options favoured by one or more members are consistent with hrs, but we are none the wiser whether the PJCHR thought so too. I agree that the PJCHR doesn’t have to pick just one option, but it’s not good enough to simply present a shopping list of ideas that had the support of “at least one member”. Without at least majority endorsement, why should we care? I’m not aware of any law reform bodies that have taken that approach, but happy to be shown otherwise. On the bright side, I thought the hearings were great.

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