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 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.
 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)