Pearls and Irritations

Human rights work has a cost, and we need to remember the cost and the toll that it takes on the people who are doing it. Those who are paying the price need the support of those who are not paying so much.  

After the government changed in 1996, not much else changed. The Sex Discrimination Commissioner, Sue Walpole, had been active in relation to equal pay. She was described by Prime Minister John Howard in Parliament as a Labor Party stooge.

But that was nothing compared to what was to come when the Bringing Them Home report was released in 1997.This was another national inquiry from the Commission. I still look back on that report, published 20 years ago, as the single most important thing that this Commission has ever undertaken. It was a huge process – the biggest thing that the Commission has undertaken, perhaps except for the ADF work that Liz Broderick did more recently. It produced a report that set out this part of our national history, the history of the Stolen Generations. The most controversial part of the report, without doubt, was the conclusion that the Commission came to that these policies constituted genocide. The Commission’s President at that time was Ron Wilson. Ron had been a High Court Judge during the 1980s. Ron was a black-letter lawyer and a conservative judge and at the end of the Bringing Them Home inquiry, Ron said “I never expected that we would come to a conclusion that these policies constituted genocide but, after taking the evidence, and considering the law, I have no alternative but to come to that conclusion.” I think that there was no part of that whole process that so enraged the then Prime Minister than that particular conclusion. First, the tabling of the report was delayed until the last possible day under the legislation. Second, the tabling of the report was preceded by its leaking to News Limited newspapers. Under the rules of parliamentary privilege, the Commission was precluded from commenting on any of its reports that needed to be tabled until such time as the tabling occurred. We respected those rules and said nothing. The Australian ran day after day with the material in that report and Ron Wilson’s resignation was demanded.

The Commission’s budget in 1997, three months after the tabling of the Stolen Generations Report, was cut by 40% and 30% of the Commission’s staff were terminated at Christmas 1997.

Between 1997 and 2000, there were three attempts to amend the Commission’s legislation to restructure the Commission by replacing the specialist Commissioners for Sex Discrimination, Race Discrimination and so forth with generalist Commissioners. One part of this legislation was to effect a spill of all existing Commissioner office holders, so that there would be a complete clearing of the decks. That aspect of the legislation was rejected on three occasions, between 1997 and 2000 by the Senate Legal and Constitutional Affairs Committee, chaired by Senator Marise Payne.The legislation was not pressed in the Senate because of opposition from that Committee. Amended legislation was finally passed in 2000. By then, it wasn’t necessary to spill all of the Commissioner positions. I was the last appointed by the previous government and my time was up in August 2000, and the rest had gone before me. So the legislation in 2000 did not affect the changes that had been sought earlier, to bring in generalist Commissioners, and did not spill existing Commissioners. What it did do was to transfer complaint handling powers from the individual Commissioners to the President of the Commission. Before this, each specialist Commissioner was responsible for complaints within her or his piece of legislation. So, for example, Quentin Bryce, as Sex Discrimination Commissioner, dealt with the sex discrimination complaints. The legislation transferred that role from all specialist Commissioners to the President of the Commission. The reason given was that this change would free the individual portfolio Commissioners from any potential conflict of interest in being advocates for the legislation and having to deal with complaints. I thought about this recently, in relation to Commissioner Tim Soutphommasane’s comments about racist media and a cartoon. He was criticised because the Commission might be taking these complaints. That’s precisely what John Howard’s government wanted him to do. In fact, the Commissioners have the power to intervene in court proceedings under the legislation – as friends of the court. So, it seemed to me that what the present Race Commissioner was doing recently was no more than what the government in 2000 wanted him to do.

When I look back over 30 years, I draw five conclusions.

First, the fundamental test of whether a national human rights institution is doing its job is whether there is tension in its relationship with its government. That tension is not an aberration. It should be the normal course of events. And if it’s not, we are entitled to challenge the Commission.

Second, no government, no political party, is relaxed about criticism of its human rights performance. And so the tension will be there no matter who is in government. Human rights work is nonpartisan.

Third, in Australia, the conservative parties are especially bad at accepting the legitimacy of human rights Commission members who are appointed by their predecessors. That’s a fact of life. They’ll calm down once they’ve made all the appointments.

Fourth, the strength and independence of the Commission today has its basis in the fact that for 30 years, not a single member has resigned under political pressure. No single member should resign due to political pressure.

And fifth, human rights work has a cost. We need to remember that for us, in this country, the cost is relatively small. We’re not really in danger of losing our lives – although human rights Commissioners in the past have received death threats. But we’re not fundamentally at risk of that, or of arbitrary imprisonment. We can be vilified, but who cares? People can lose their jobs – that’s serious. And people have lost their jobs because of the work of human rights in this institution. Human rights work has a cost, and we need to remember the cost and the toll that it takes on the people who are doing it. Those who are paying the price need the support of those who are not paying so much.

The Obamas have proclaimed that their family motto is “when they go low, we go high”. The Human Rights Commission has got it wrong on occasions – it’s a human institution made up of human beings, it hasn’t done the right thing all the time, it has formed some wrong conclusions. But over the course of the 30 years when I look back on it, I’m happy to draw the conclusion that, when they’ve gone low, the Commission has gone high. And may it ever be so.

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. 

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