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HREOC: help or hindrance in human rights?

By Angela Matheson Australia's first Aboriginal and Torres Strait Islander social justice commissioner, Mick Dodson is pacing about his office at the Human Rights and Equal Opportunity Commission (HREOC) in Sydney, cursing his inability to get his job done. "I'm supposed to help rectify the situation for indigenous people which the Royal Commission into Black Deaths in Custody exposed", he says of efforts during the past two years to fulfil his nationwide brief to monitor and promote indigenous human rights. "But years after the royal commission, has Aboriginal people's experience changed? No. We're still the poorest, sickest, most poorly housed and most locked-up people in the country. And things are getting worse." He waves at his 1994 annual report. Dodson's report is a catalogue of indigenous human rights scandals; bureaucratic failures to implement practices which would improve living standards of indigenous people and cut imprisonment rates. The failures extend across Commonwealth and state government departments including police, prisons, health, education and the judiciary. "The Aboriginal prison population has increased by 52% since the royal commission. On this fact alone, you have to conclude that the royal commission's 60 or so recommendations haven't been put in place or been implemented effectively", says Dodson. His report documents that Aboriginal and Torres Strait Islander infant mortality rates are now three times those of the general population, life expectancy is 18-20 years less, and imprisonment rates are skyrocketing — NSW incarceration rates rose from 1105 to 1670 per 100,000 between 1988 and 1993. HREOC is responsible for implementing human rights legislation, handling complaints and carrying out inquiries into discriminatory practices and infringements of human rights. But while commissioners like Dodson are able to report in meticulous detail on bureaucratic failure, no HREOC commissioner has the power to enforce change in government departments. Dodson's feelings of impotence are not unusual amongst HREOC commissioners, whose radical reports — like the Burdekin Report into Human Rights and Mental Illness — gather dust on shelves, and whose recommendations are regularly stifled by a lack of bureaucratic follow-up. The commission is also beleaguered by funding cuts; an exponential growth in complaints of discrimination which are often banked up for months; a high withdrawal rate of complaints; and an erosion of its powers by the recent High Court ruling that the commission has no standing to enforce its determinations. Sex discrimination commissioner Sue Walpole is run off her feet trying to meet demand for one of the country's workplace growth industries — sex discrimination education and training. The bulk of her hours are spent lobbying the superannuation industry and making submissions to the Industrial Relations Commission to eliminate indirect discrimination against women in awards and superannuation. In line with all Commonwealth departments, HREOC's budget was cut by 3% across the board costing it $600,000 of its shoestring $18 million annual budget. Walpole's unit is also staggering under the 20% rise in the number of sex discrimination complaints this year, following a 68% increase the year before in NSW alone. Some cases are banked up for 9-12 months. "Women in particular have realised there is a place where they can complain about sexual harassment or discrimination that's less expensive and formal than a court", says Walpole. "But if people have to wait too long, they get disillusioned with the process and withdraw the complaint. We need to deal with them quickly." HREOC's disability discrimination commissioner, Elizabeth Hastings, whose unit handles up to one-third of the commission's complaint load, has also been deluged. "We've had up to 1200 complaints in the last reporting year compared to 302 the previous year", she says. More problematic than complaint backlogs, says Walpole, is that complaints lodged with HREOC are an unrepresentative tip of the discrimination iceberg. Critics of HREOC like Margaret Thornton, professor of law and legal studies at LaTrobe University and author of the controversial critique of anti-discrimination legislation, The Liberal Promise: Anti-Discrimination Legislation in Australia, believes HREOC's slow progress in dealing with systemic discrimination is an in-built limitation in such commissions. "Because HREOC deals with complaints on an individual basis, the underlying problems of discrimination at an institutional level tend not to be addressed", she says. "This individualist approach ignores the fact that a complaint is merely one manifestation of a wider problem. It's a case of a surface wound being dealt with while the subcutaneous cancer remains hidden. "The process effectively deflects attention away from wider issues such as the broad societal and institutional oppression of women and minority groups." Aboriginal Deaths in Custody Watch Committee coordinator Ray Jackson is adamant that HREOC contains rather than addresses public concern over racism and sexism. "The government doesn't want to open the floodgates so that racism or sexism are actually dealt with", he says. "What HREOC's really there for is to make government look as if it's doing something without actually making any real change. The commission hasn't got any real power. "The facts speak for themselves. There's been 75 black deaths in custody since May 1989, arrest rates are increasing, prison rates are increasing, the whole system's a runaway train coming down the mountain." Thornton argues that governments in countries like Australia set up anti-discrimination legislation and organisations like HREOC to allow them to pay lip service to human rights on issues which get in the way of conflicting economic agendas. "Organisations like HREOC mainstream human rights issues in a contained way", she says. "It deflects responsibility away from government and allows it to pursue contradictory policies simultaneously. It can point to HREOC to show it's opposed to discrimination against women, while at the same time pursuing economic policies like enterprise bargaining which directly discriminate against women by increasing the wage gap between men and women." Thornton also believes bodies like HREOC put the breaks on grassroots activism. "The whole point of these types of institutions is to defuse radical critique and radical activity in the community. They silence the clamour of interest groups lobbying for reform." Commissioner Walpole disagrees. "While that sort of analysis has some validity, the very fact that HREOC is here provides leverage to legitimate debates about discrimination. People can no longer say, 'I won't hire you because you're a woman'; this is no longer seen as acceptable. This is a massive shift in which HREOC played a major part. "At the end of the day, people walk out of HREOC with their complaint resolved and with a new confidence that they do have rights. About 50,000 people have made complaints or responded to them since the Sex Discrimination Act came into being." But according Rosemary Hunter, a senior lecturer in law at Melbourne University, "Satisfaction rates among women complaining about sex discrimination at HREOC aren't very good". Hunter is joint author of the recently published report, The Outcomes of Conciliation in Sex Discrimination Cases, in which she reviewed HREOC's cases between 1989-93. According to Hunter, "People who complain about sex discrimination were twice as unlikely to come out of conciliation with what they originally wanted, than those they'd laid the complaint against. In contrast, whoever the complaint was laid against was twice as likely to come out of conciliation handing over what they'd originally been prepared to concede." The problem with working in institutions like HREOC, according to human rights activist and magistrate Pat O'Shane, is losing sight of the broader issues. "People who work in these institutions are genuinely concerned about human rights abuses", she says. "But they often become so trapped and involved in constantly writing reports and trying to hang on to their meagre funding dollars that they don't have the opportunity to sit back and look hard at the bigger picture. "And in the absence of being able to make real change, they celebrate the occasional small victories. It's understandable of course — if you didn't hang on to the few things that you do get done, you'd commit suicide." Worse, according to Thornton, is that human rights bodies coopt activists from grassroots radical groups into the tamer environment of the human rights bureaucracies. "It's damage control", she says. "Staff in these institutions are government employees. They're not going to engage in grassroots activism if government doesn't deliver on their recommendations. Who knows what opportunities have been missed in furthering human rights by this coopting of radicals?" Nevertheless, critics of the commission, both inside and out, want HREOC retained at all costs. Dodson, for example, argues on the one hand that the function of the commission is sometimes tokenistic: "There's no doubt some politicians try to foster ignorance and fear — blaming and scapegoating groups like street kids or Aboriginal people to win elections. So while some politicians are promoting this sort of prejudice, we're here trying to check it." On the other hand, he ardently promotes the symbolic function of the commission. He says, "My office is the only one of its type on the planet — a watchdog office on indigenous human rights. A lot of countries are envious of the way HREOC functions and a lot of overseas human rights activists would love to have something like it." He also points to recommendations from the Royal Commission into Black Deaths in Custody which have been successfully implemented. "Look at the Aboriginal communities in SA, the NT and WA who have organised their own patrols to keep people out of prison. That's a real success." Thornton counters: "The argument that we're better off with HREOC than without it is always a hard one to oppose because the commission does set a baseline for acceptable conduct. But let's face it — the standard's not a very high one. "And what you find is that the small successes which happen every now and then are clung to and lauded in a way greatly disproportionate to their real significance." Champions of the commission, however, argue that although HREOC's work has not as yet translated into major human rights progress, the commission's most significant achievement — putting human rights on the mainstream agenda — is overlooked and underestimated. "It's impossible to overestimate the extent to which the commission has made Australians more aware of the centrality of their rights in everyday life", argues newly appointed human rights commissioner Chris Sidoti. He views HREOC as part of long-term consciousness raising around human rights issues on a societal level which he hopes will gain momentum and translate into higher expectations and more effective mechanisms for ensuring human rights. "One of Brian Burdekin's major achievements was to take human rights into the mainstream. Even 10 years ago, human rights, to the extent that they were thought of at all, were seen almost exclusively in terms of Aboriginal and immigrants' rights rather than as the right of all people to enjoy things like freedom of expression and religion." In the tradition of his predecessor, Brian Burdekin, Sidoti — a former commissioner at the Australian Law Reform Commission — is planning for the long haul. His vision is to entrench and protect Australian human rights in constitutional law by getting a Bill of Rights up and running by the end of his five-year term. "Australians still don't realise how fragile and precarious their ability to exercise their human rights really is under our law", he says. "Historically, we haven't been through the revolutionary experience of France or the US, or the experience of acquiring national independence in the way many other former colonies have. We don't value highly enough the necessity of the law to ensure the protection of basic political and human rights. "Because of the work of bodies like HREOC, the community is now seeing that human rights are about all people: that they're about me, my family, my community, about individual freedom of expression and religion. The next step is to translate the expectation into action. I think that's progress." Such optimism, however, doesn't hold sway with the critics. "My observation is that the genuine, committed reformers get disillusioned and burnt out by the end of their terms. Then they leave", says Thornton. "Look at Burdekin's fight for the rights of the mentally ill. He pulled no punches, but almost none of his recommendations in the mental illness report have been implemented, and now he's gone."
[Another version of this article first appeared in the Sydney Morning Herald.]