tag:theconversation.com,2011:/global/topics/australian-human-rights-commission-3537/articlesAustralian Human Rights Commission – The Conversation2024-03-05T22:28:47Ztag:theconversation.com,2011:article/2215922024-03-05T22:28:47Z2024-03-05T22:28:47ZNon-disclosure agreements are commonplace in sexual harassment cases, but they’re being misused to silence people<figure><img src="https://images.theconversation.com/files/576673/original/file-20240220-18-cck0gn.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C5455%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-reading-documents-coffee-shop-girl-1126464620">Shutterstock</a></span></figcaption></figure><p>Non-disclosure agreements (NDAs) came into public consciousness during the #MeToo movement after multiple women spoke out with sexual harassment allegations against film producer Harvey Weinstein.</p>
<p>Weinstein systematically used NDAs to <a href="https://www.theguardian.com/commentisfree/2022/dec/15/nda-harvey-weinstein-confidentiality-clause-abuse">silence victim-survivors</a>. It’s a major reason it took years for his behaviour to be made public. Because of the secrecy involved, it’s also how he was able to continue perpetrating harm against so many women. </p>
<p>We’ve been researching how NDAs are used in out-of-court sexual harassment settlements here in Australia. We’ve <a href="https://rlc.org.au/letstalkaboutconfidentiality">found</a> NDAs remain the default resolution practice for most lawyers, despite guidelines advising against it.</p>
<p>Given <a href="https://humanrights.gov.au/time-for-respect-2022">one in three</a> Australian workers have been sexually harassed in the past five years and that many incidents are not reported, the pervasive use of confidentiality agreements means we know very little about what is happening in our workplaces and the cultural drivers of sexual harassment. It also means victim-survivors may agree to terms that prevent their psychological healing because they are bound to confidentiality. </p>
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Read more:
<a href="https://theconversation.com/buying-silence-we-cant-stop-workplace-sexual-harassment-without-banning-non-disclosure-agreements-172856">Buying silence: we can't stop workplace sexual harassment without banning non-disclosure agreements</a>
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<h2>What is a non-disclosure agreement?</h2>
<p>NDA is the universal description for what we call confidentiality agreements or confidentiality contractual terms.</p>
<p>Most sexual harassment complaints are resolved <a href="https://humanrights.gov.au/sites/default/files/2022-02/ahrc_ar_2020-2021_complaint_stats.pdf">out of court</a> and are subject to a “settlement agreement”. These are contractual agreements that release respondents from any liability in exchange for a benefit to the applicant, such as money. </p>
<p>In Australia, confidentiality and non-disparagement terms are usually part of this settlement, so it’s effectively a NDA. </p>
<p>There is no doubt these agreements can be beneficial, and certainly some victim-survivors seek these terms. However, the Australian Human Rights Commission recognised that they’ve become standard and misused in the <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work Report</a>. </p>
<p>The Respect@Work Council was set up to implement the recommendations in that report. The council released <a href="https://www.respectatwork.gov.au/resource-hub/guidelines-use-confidentiality-clauses-resolution-workplace-sexual-harassment-complaints">guidelines</a> in December 2022 on the use of NDAs in workplace sexual harassment settlements. The guidelines say confidentiality clauses should not be seen as standard terms. They say that if NDAs must be used, scope should be limited, with exceptions allowing victim-survivors to speak to people in their support network, such as doctors or family. </p>
<p>We surveyed 145 sexual harassment lawyers to see how the guidelines are working in practice.</p>
<h2>Are the guidelines being followed?</h2>
<p>Even after those guidelines were released and after social movements like #MeToo and #TimesUp, <a href="https://rlc.org.au/letstalkaboutconfidentiality">our research</a> shows 75% of legal practitioners have never resolved a sexual harassment settlement without a strict NDA. This means blanket confidentiality with no carve-outs for disclosures to doctors or other supports.</p>
<p>We found the guidelines are not, at least yet, used as an effective resolution mechanism. In fact, 25% of sexual harassment practitioners have not read the guidelines and they are rarely provided to the other side in negotiations.</p>
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<a href="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of protestors in an American street holding a sign that says '#MeToo #TimesUp'" src="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/577191/original/file-20240221-26-891bxk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The #MeToo movement prompted some legislative change in the US.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/january-20-2018-san-francisco-ca-1005750553">Shutterstock</a></span>
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<p>We also found there is no cohesive approach in the legal profession to how confidentiality agreements are used in sexual harassment settlements. We identified three themes:</p>
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<li><p>some advocates told us the “standard” NDA practice is having carve-outs for victim-survivors to speak to doctors or family</p></li>
<li><p>other advocates spoke of usually having confidentiality around settlement terms only, allowing victim-survivors to otherwise speak about their experience</p></li>
<li><p>many advocates told us that exhaustive or strict agreements are standard practice, which mean a victim-survivor cannot speak to anyone about their experience. </p></li>
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Read more:
<a href="https://theconversation.com/companies-need-confidentiality-clauses-but-not-to-muzzle-sexual-abuse-victims-87716">Companies need confidentiality clauses – but not to muzzle sexual abuse victims</a>
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<p>As an example of the third point, one solicitor said:</p>
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<p>If you propose a non-standard clause which is anything but broad confidentiality there’s such a lot of pushback from the respondents that it just it feels like you both have to advocate for your client and also educate the respondent simultaneously.</p>
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<p>NDAs are not mandatory but their use is so entrenched that many practitioners do not advise of the option of not having one. Close to 30% of applicant practitioners and 50% of respondent practitioners have never provided this advice to clients. </p>
<p>It is a basic premise that lawyers provide advice and clients instruct. It’s spelled out in our Solicitors Conduct Rules. How can a client provide an instruction if they do not know all their options? If clients aren’t being advised on the nuances of NDAs, including possible carve-outs or reduction in scope, they are not empowered as active participants in their own legal matter. </p>
<h2>What are other countries doing?</h2>
<p>In Canada and the United States, legislation has been introduced to limit the use of NDAs and move away from these clauses being “standard”. A key aim of many of these proposed reforms is to provide the complainant with true choice, including proposed laws being considered <a href="https://www.theguardian.com/australia-news/2022/jul/11/victorias-move-to-restrict-silencing-sexual-harassment-victims-welcomed-by-unions-and-lawyers">in Victoria</a>. </p>
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<p>While new legislation is one way to tackle the problem, an effective response may exist already within the regulation of legal conduct. </p>
<p>Until recently in Australia, the conduct of lawyers in negotiations was not commonly considered a disciplinary or professional conduct issue. But in September 2023, the Victorian Legal Services Board + Commissioner <a href="https://lsbc.vic.gov.au/lawyers/practising-law/sexual-harassment/advice-lawyers-using-confidentiality-clauses-resolve">published advice</a> on how lawyers should use NDAs when resolving workplace sexual harassment complaints.</p>
<p>It advised lawyers they must be mindful to maintain the professional duty to act with independence and integrity when also upholding their duty to act in the best interest of their client. This requires careful consideration of clients’ short- and long-term interests. </p>
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Read more:
<a href="https://theconversation.com/banning-non-disclosure-agreements-isnt-enough-to-stop-unethical-workplace-leader-behaviour-173574">Banning non-disclosure agreements isn't enough to stop unethical workplace leader behaviour</a>
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<p>A confidentiality clause may be useful in the short term to protect an employer from reputational damage. The same clause, however, may operate against a client’s long-term interests if the same perpetrator sexually harasses another person and it becomes public knowledge that the business had been using NDAs to hide this conduct. </p>
<p>Our research found lawyers for alleged victim-survivors who advocate on this issue routinely are achieving settlements without strict NDAs. We had many lawyers who act for both employees and employers tell us they have settled multiple matters in the past 12 months without strict NDAs, in ways that are tailored to their client’s needs.</p>
<p>But the advocacy of lawyers can be limited if outdated practices remain entrenched. Ultimately, the entire profession needs to be better educated to ensure these agreements aren’t misused. In turn, we’ll see greater transparency around sexual harassment.</p><img src="https://counter.theconversation.com/content/221592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Regina Featherstone was a 2023 Social Justice Practitioner-in-Residence at the University of Sydney and is a senior lawyer at the Whistleblower Project, Human Rights Law Centre.</span></em></p><p class="fine-print"><em><span>Sharmilla Bargon was a 2023 Social Justice Practitioner-In-Residence at the Univeristy of Sydney and is a senior solicitor at Redfern Legal Centre</span></em></p>Non-disclosure agreements have been used to keep victim-survivors from speaking up. Despite guidelines addressing this, new research shows such agreements remain standard practice.Regina Featherstone, Social Justice Practitioner in Residence/Senior Lawyer, University of SydneySharmilla Bargon, Social Justice Practitioner in Residence/Senior Solicitor, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2183592023-11-29T03:00:42Z2023-11-29T03:00:42ZIt can be hard to challenge workplace discrimination but the government’s new bill should make it easier<p>Alex Gutierrez worked for MUR Shipping and its predecessors for nearly 30 years. But in 2018 he was told, in line with company policy, it was time to set a retirement date.</p>
<p>Gutierrez was moved to a fixed-term contract, asked to train his replacement and ultimately resigned from his job. He then complained to the Australian Human Rights Commission and brought his claim to court, alleging age discrimination. </p>
<p>He won the case but he also lost.</p>
<p>The <a href="https://jade.io/article/866476">court found</a> the company had discriminated. But Gutierrez’s damages – A$20,000 - dwarfed his legal costs, which amounted to <a href="https://www.thesaturdaypaper.com.au/news/law-crime/2023/06/10/landmark-win-age-discrimination-case">about $150,000</a>. The low damages also meant Gutierrez might have to pay MUR’s costs, as the damages were lower than a previous settlement offer.</p>
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Read more:
<a href="https://theconversation.com/workplace-discrimination-saps-everyones-motivation-even-if-it-works-in-your-favor-214812">Workplace discrimination saps everyone's motivation − even if it works in your favor</a>
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<p>Gutierrez was the first person to win an age discrimination case in court in the roughly 20 years the federal Age Discrimination Act 2004 has existed and his situation explains why. You can win in court but still be hugely out of pocket for your costs and your employer’s costs. Few people take the risk.</p>
<p>That problem will be largely eliminated under a new government bill before the federal parliament. The <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7110">bill</a> would introduce a modified “equal access” cost protection provision for discrimination claims.</p>
<h2>How changing the law would help</h2>
<p>If the bill passes, claimants (workers) will generally recover their costs when their claim is successful. Respondents (employers) cannot generally recover their costs, except in limited circumstances. This could significantly increase the number of workers who are willing to sue over discrimination, of any kind.</p>
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<a href="https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Seated woman looking uncomfortable as a man in a suit rests his hand on her shoulder" src="https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561731/original/file-20231127-27-fyp854.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">If the changes to the law are passed, the cost of lodging a complaint will be less prohibitive.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/search/workplace-discrimination?image_type=photo">Dmytro Zinkevych/Shutterstock</a></span>
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<p>Discrimination at work is common: in one <a href="https://humanrights.gov.au/our-work/age-discrimination/publications/whats-age-got-do-it-2021">survey</a> conducted for the Australian Human Rights Commission, 63% of respondents said they had experienced age discrimination – being considered too young, or too old - in the last five years. </p>
<p>But few people challenge discrimination in the workplace. In <a href="https://global.oup.com/academic/product/reforming-age-discrimination-law-9780198859284">my research</a> on age discrimination law, I found people were often concerned about the costs of making a complaint. This includes financial costs, but also personal and emotional costs. People were also worried about the time it might take to resolve. </p>
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Read more:
<a href="https://theconversation.com/20-years-of-tracking-sexual-harassment-at-work-shows-little-improvement-but-that-could-be-about-to-change-195554">20 years of tracking sexual harassment at work shows little improvement. But that could be about to change</a>
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<p>Costs have been a particular problem under federal discrimination law.</p>
<p>Australia has discrimination laws at state, territory and federal level. Discrimination is also banned under industrial law – the federal Fair Work Act 2009. In every jurisdiction except Victoria, a complaint is first made to a statutory equality agency, which tries conciliation. </p>
<p>In many cases, this succeeds and most claims are resolved, though many are withdrawn.</p>
<h2>Conciliation can save time and money</h2>
<p>Conciliation is comparatively quick and cheap and lawyers are often not involved because you can represent yourself.</p>
<p>It is when a complaint isn’t resolved at conciliation that the costs increase. In the states and territories, and under the federal Fair Work Act 2009, parties mostly pay their own costs (that is, the cost of a lawyer).</p>
<p>It is different under federal discrimination law. In the federal courts, the losing party generally pays the winning party’s costs. This makes the stakes of a discrimination claim incredibly high: if your claim fails, you may not just have to pay your own legal bill, but also the other side’s legal bill. </p>
<p>The perils of costs were shown by Gutierrez’s case. In <a href="https://jade.io/article/866476">Gutierrez v MUR Shipping Australia Pty Limited</a>, despite winning his claim of age discrimination, Gutierrez had to appeal in order to escape punishing legal costs.</p>
<p>Fortunately, Gutierrez had his <a href="https://jade.io/article/996045">appeal upheld</a>; his damages were increased to $232,215, so he was no longer liable for the other side’s costs, and he had his appeal costs paid. But not every claim under the current law will be so lucky.</p>
<h2>Prohibitive costs can stop people from taking action</h2>
<p>Costs make challenging discrimination at work under federal law much more difficult. The human rights commission’s <a href="https://www.humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work report</a> found the risk of a costs order was a significant “disincentive” to bringing a claim under federal law.</p>
<p>The new bill might remove this disincentive by re-balancing the costs of claiming, enabling many more people to challenge discrimination in the federal courts.</p>
<p>We all have an interest in challenging discrimination and inequality. Research suggests more equal societies are <a href="http://hdl.handle.net/10419/108311">happier</a> and <a href="https://www.penguinrandomhouse.ca/books/395860/the-spirit-level-new-edition-by-richard-wilkinsonkate-pickett/9780241954294">healthier</a> overall. There is a good chance, too, many of us will experience some form of discrimination in our working lives. </p>
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Read more:
<a href="https://theconversation.com/every-worker-is-entitled-to-be-safe-at-work-but-casual-workers-can-fall-through-the-cracks-208206">Every worker is entitled to be safe at work, but casual workers can fall through the cracks</a>
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<p>Using discrimination law – making a complaint – can benefit us as individuals but can also force broader change. It can lead to policy change and it can force employers to take equality seriously.</p><img src="https://counter.theconversation.com/content/218359/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alysia Blackham has previously received grant funding from the Australian Research Council’s Discovery Projects funding scheme (Project DE170100228) and the Victorian Commission for Gender Equality in the Public Sector. She is a member of the National Tertiary Education Union. </span></em></p>Planned legal changes could make it easier for people to take workplace discrimination cases to court by eliminating often prohibitive costs.Alysia Blackham, Associate Professor in Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1955542022-11-30T04:29:19Z2022-11-30T04:29:19Z20 years of tracking sexual harassment at work shows little improvement. But that could be about to change<figure><img src="https://images.theconversation.com/files/497805/original/file-20221129-20-c18y6m.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C9489%2C4808&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The fifth national survey on sexual harassment in Australian workplaces, published today, shows little has changed since the last survey in 2018 – or indeed since the first survey in 2003. </p>
<p>It points to the importance of the legislative changes being pursued by the Albanese government, including reforms that passed parliament on Monday.</p>
<p>The <a href="https://humanrights.gov.au/time-for-respect-2022">survey of 10,000 Australians</a> was commissioned by the Australian Human Rights Commission and conducted by Roy Morgan Research in August and September. It shows 33% of workers were sexually harassed at work in the previous five years – 41% of women and 26% of men. </p>
<p>This compares with 39% of women and 26% of men <a href="https://humanrights.gov.au/sites/default/files/document/publication/AHRC_WORKPLACE_SH_2018.pdf">in 2018</a>, and with 15% of women and 6% of men <a href="https://humanrights.gov.au/our-work/sexual-harassment-workplace-key-findings-overview">in 2003</a> (though these results cannot be easily compared with the latest figures due to changes in survey methodology). </p>
<p>The most common form of sexually harassment were: </p>
<ul>
<li>comments or jokes (40% of women, 14% of men)</li>
<li>intrusive questions about one’s private life or appearance (32% of women, 14% of men)</li>
<li>inappropriate staring (30% of women, 8% of men)</li>
<li>unwelcome touching, hugging, cornering or kissing (28% of women, 10% of men)</li>
<li>inappropriate physical contact (26% of women, 11% of men).</li>
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<p>Men were responsible for 91% of harassment of women, and 55% of harassment of men.</p>
<p>Most of those harassed said their harasser also sexually harassed another employee. Just 18% formally reported the harassment. Of those, only 28% said the harassment stopped as a result, while 24% said their harasser faced no consequences. </p>
<h2>Slow work on reforms</h2>
<p>These results highlight the importance of the reforms now being made by the Albanese government, implementing the recommendations of the Australian Human Rights Commission’s 2020 <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work</a> report. </p>
<p>That report made 55 recommendations. The Morrison government acted on just a handful. </p>
<p>It amended <a href="https://www.fairwork.gov.au/about-us-legislation-fair-work-system/respect-work-reforms">the Fair Work Act</a> to enable individuals to apply to the Fair Work Commission for a “stop sexual harassment” order, and to make it clear sexual harassment is grounds for dismissal. </p>
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<img alt="The Morrison government's reforms were focused on responses to harassement complaints, rather than prevention." src="https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498160/original/file-20221130-20-u0xn2v.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Morrison government’s reforms were focused on responses to harassement complaints, rather than prevention.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>But it ignored the key recommendation: placing a positive duty on employers to prevent sexual harassment, requiring them to treat harassment like other work health and safety issues. </p>
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Read more:
<a href="https://theconversation.com/sexual-harassment-at-work-isnt-just-discrimination-it-needs-to-be-treated-as-a-health-and-safety-issue-144940">Sexual harassment at work isn't just discrimination. It needs to be treated as a health and safety issue</a>
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<p>This was needed, the report argued, because treating sexual harassment as being about aberrant individuals led to a workplace focus on individual complaints. It did little to change structural drivers of such behaviour.</p>
<h2>Albanese government commitments</h2>
<p>On Monday, the Albanese government finally made this pivotal reform, when parliament <a href="https://humanrights.gov.au/about/news/media-releases/passage-respectwork-bill-major-step-preventing-harassment">passed its Respect@Work bill</a>. </p>
<p>It is now no longer enough for employers to have a policy and act on complaints. They must also take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation.</p>
<p>The government has committed to implementing all 55 recommendations. The Respect@Work bill implements seven. </p>
<p>Others should be achieved with the omnibus industrial relations bill now before the Senate. Improving the conditions and bargaining power of those in insecure and low-paid work, and reducing gender inequalities, should lessen the vulnerabilities that enable harassment to flourish. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-mandate-for-multi-employer-bargaining-without-it-wages-for-the-low-paid-wont-rise-193829">A mandate for multi-employer bargaining? Without it, wages for the low paid won't rise</a>
</strong>
</em>
</p>
<hr>
<h2>Ratifying the ILO convention</h2>
<p>Last week Prime Minister Anthony Albanese also <a href="https://www.pm.gov.au/media/address-international-trade-union-confederation">committed</a> to ratifying the International Labor Organisation’s convention on <a href="https://www.ilo.org/global/topics/violence-harassment/lang--en/index.htm">Eliminating Violence and Harassment in the World of Work</a>.</p>
<p>So far, <a href="https://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:3999810">22 nations</a> have ratified the treaty. Ratification will oblige Australia to align its laws and regulations with the treaty’s provisions. </p>
<p>This is significant not just because the convention is the first international treaty to enshrine the right to work free from violence and harassment as its focus. It also breaks with the historical framing of sexual harassment as an individual interpersonal conflict. </p>
<p>The convention calls for an integrated approach to eliminating workplace violence and harassment. In Australia’s case, this will require developing approaches that break down the policy and regulatory fences between anti-discrimination measures, and those covering workplace rights and work health and safety. </p>
<p>This could prove challenging – with sexual harassment being only one form of gender-based violence. But implementing all 55 recommendations of the Respect@Work report is a good start.</p>
<p>Hopefully the sixth national workplace survey will have a better story to tell.</p><img src="https://counter.theconversation.com/content/195554/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Heap receives scholarship funds from RMIT University and the Commonwealth Government. </span></em></p>The fifth national survey on sexual harassment in Australian workplaces shows little movement since the last survey in 2018.Lisa Heap, Doctoral Researcher, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1803082022-03-30T03:32:42Z2022-03-30T03:32:42ZBudget cuts to the Australian Human Rights Commission couldn’t have come at a worse time<p>The budget for Australia’s national human rights institution, the <a href="https://humanrights.gov.au/">Australian Human Rights Commission</a>, will fall significantly over the next four years.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1508900820750073859"}"></div></p>
<p>These cuts are outlined in the budget <a href="https://www.ag.gov.au/system/files/2022-03/09-2022-23-Australian-Human-Rights-Commission.pdf">statements</a> from the attorney-general’s portfolio:</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=385&fit=crop&dpr=1 600w, https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=385&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=385&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=484&fit=crop&dpr=1 754w, https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=484&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/455109/original/file-20220329-21-1rp8a9h.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=484&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.ag.gov.au/system/files/2022-03/09-2022-23-Australian-Human-Rights-Commission.pdf">Budget papers</a></span>
</figcaption>
</figure>
<p>These budget cuts couldn’t have come at a worse time, for two important reasons. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-cost-of-living-budget-cuts-spends-and-everything-you-need-to-know-at-a-glance-180124">A cost-of-living budget: cuts, spends, and everything you need to know at a glance</a>
</strong>
</em>
</p>
<hr>
<h2>The Australian Human Rights Commission is already struggling</h2>
<p>First, the commission is already struggling.</p>
<p>Earlier this month its president, Rosalind Croucher, <a href="https://www.theguardian.com/australia-news/2022/mar/17/australian-human-rights-commission-to-slash-staff-after-budget-cuts-and-surge-in-workload">reported</a> the Australian Human Rights Commission was already severely underfunded to perform its statutory functions. </p>
<p>The commission is an independent statutory agency, established by Commonwealth <a href="https://www.legislation.gov.au/Details/C2017C00143">legislation</a>. It has many responsibilities related to its core purpose of protecting and promoting human rights in Australia and internationally. These include:</p>
<ul>
<li><p>the investigation and conciliation of discrimination <a href="https://humanrights.gov.au/complaints">complaints</a></p></li>
<li><p>law reform <a href="https://humanrights.gov.au/our-work/legal/submissions-commission">advocacy</a></p></li>
<li><p>human rights <a href="https://humanrights.gov.au/education">education</a>, and</p></li>
<li><p>monitoring of Australia’s human rights <a href="https://humanrights.gov.au/our-work/rights-and-freedoms/projects/australias-third-universal-periodic-review-upr">performance</a> in the context of its international legal obligations.</p></li>
</ul>
<p>Even before the budget, Croucher expected the Australian Human Rights Commission would need to <a href="https://www.theguardian.com/australia-news/2022/mar/17/australian-human-rights-commission-to-slash-staff-after-budget-cuts-and-surge-in-workload">reduce its staffing by 33%</a> to operate within budget. </p>
<p>Over the course of the pandemic, there has been a dramatic increase in the number of <a href="https://www.theguardian.com/australia-news/2020/oct/22/australias-cap-on-arrivals-during-covid-pandemic-may-break-international-laws">complaints</a> made to the Australian Human Rights Commission.</p>
<p>The Australian Human Rights Commission’s 2020-21 <a href="https://humanrights.gov.au/our-work/commission-general/publications/annual-report-2020-2021">annual report</a> noted growing capacity constraints in dealing with this increase in complaints within its allocated budget.</p>
<p>Australia is already distinguished from like countries by its <a href="https://theconversation.com/australias-human-rights-council-election-comes-with-a-challenge-to-improve-its-domestic-record-80953">lack</a> of comprehensive domestic human rights protection. This heightens the significance of the commission’s work. </p>
<p>Most Australians have very little recourse to complaints for human rights violations beyond the Australian Human Rights Commission.</p>
<h2>Australia has committed to strengthening human rights institutions</h2>
<p>Secondly, cutting the Commission’s resources affects more than its capacity to address complaints. </p>
<p>In 1993, the UN General Assembly resolved principles relating to the status of national human rights institutions, known as the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-relating-status-national-institutions-paris">Paris Principles</a>. </p>
<p>These are minimum standards for the independent operation of national institutions. Australia has been committed to upholding them through the Australian Human Rights Commission since the principles were first agreed. </p>
<p>The principles say, in part: </p>
<blockquote>
<p>The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect its independence.</p>
</blockquote>
<p>This provision indicates that independence from government is essential to the status of a national human rights institution. </p>
<p>The Attorney-General’s department website notes the Australian Human Rights Commission is <a href="https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australian-human-rights-commission">accredited</a> as an “A status” institution, meaning that it is fully compliant with the Paris Principles. </p>
<p>An organisation known as the Global Alliance of National Human Rights Institutions is responsible for that process of accreditation. It will review the Australian Human Rights Commission’s status this year, and may be compelled to downgrade it to “B status” as only partially compliant with the principles.</p>
<p>That’s because the commission faces a range of threats to its standing and independence, on top of the budget cuts.</p>
<p>In recent years, the Australian government has more than once <a href="https://theconversation.com/australias-a-rating-on-human-rights-is-under-threat-with-a-handpicked-politically-engineered-commissioner-167626">handpicked</a> a new commissioner for the Australian Human Rights Commission, rather than complying with the obligation to run a transparent, merit-based appointment process. </p>
<p>Former Australian Human Rights Commission president Gillian Triggs was subjected to <a href="https://www.abc.net.au/news/2015-02-12/human-rights-immigration-report-blatantly-partisan-abbott/6087148?nw=0&r=HtmlFragment">extraordinary attacks</a> from government ministers – including former prime minister Tony Abbott – particularly in response to a report it released criticising the treatment of children in immigration detention. </p>
<p>Former attorney-general George Brandis was later <a href="https://theconversation.com/brandis-censured-by-senate-over-triggs-attacks-38231">censured</a> by the Senate over his failure to defend Triggs or the independence of the commission, and for trying to induce her to resign as president. </p>
<p>As she left office, Triggs <a href="https://www.theguardian.com/australia-news/2017/jul/26/gillian-triggs-australian-government-ideologically-opposed-to-human-rights">called</a> the government “ideologically opposed to human rights”. </p>
<p>All of these developments undermine a central pillar of Australia’s voluntary commitments to the UN Human Rights Council, when it commenced its first ever term as a member state on that body in 2018. </p>
<p>Australia pledged to build capacity and <a href="https://www.dfat.gov.au/international-relations/international-organisations/un/unhrc-2018-2020/pillars-and-priorities/Pages/promoting-strong-national-human-rights-institutions-and-capacity-building">strengthen national human rights institutions</a>, particularly in the Indo-Pacific region. </p>
<h2>Twin crises</h2>
<p>The Australian Human Rights Commission now faces twin crises of insufficient funding and threats to its global standing. The potential consequences are not only reputational.</p>
<p>If the Australian Human Rights Commission is downgraded to a “B status” institution, it will lose its right to vote or hold office in the Global Alliance of National Human Rights Institutions. </p>
<p>It will be restricted to observer status before the UN Human Rights Council, and stripped of its current independent participation rights across UN human rights institutions. </p>
<p>Having made an historic commitment to human rights leadership through its 2018-20 Human Rights Council term, Australia is increasingly sending an opposite message at home regarding its interest in the protection and promotion of human rights.</p>
<hr>
<p><strong><em>Since this article was first published, The Conversation received the following comment from the office of the attorney-general, Michaelia Cash:</em></strong></p>
<p><em>As is the case with most agencies, funding varies over the forward estimates due to time-limited projects that are funded at particular points.</em></p>
<p><em>The reductions in the “ordinary annual services” funding relate to terminating measures that fund the Commission to:</em></p>
<p><em>* the completion of the Parliamentary Workplaces Review (ending in 2021-22)</em></p>
<p><em>* support the Age Discrimination Commissioner in delivering on her key priorities as part of the aged care reform agenda (ending in 2022-23)</em></p>
<p><em>* support business to respond and support people who may wish to come forward with historical complaints of sexual harassment (ending in 2023-24).</em></p>
<p><em>The appropriation of the Commission to perform its core functions is more or less steady over the forward estimates.</em></p>
<p><em>Any suggestion that the conclusion of a time-limited project amounts to a cut in the AHRC’s budget does not accord with the basic tenets of accounting and gives the perverse incentive to have finitely timed projects with infinite resources.</em></p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/josh-frydenbergs-budget-is-an-extraordinary-turnaround-but-leaves-a-40-billion-problem-180123">Josh Frydenberg’s budget is an extraordinary turnaround – but leaves a $40 billion problem</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/180308/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Australian Human Rights Commission now faces twin crises of insufficient funding and threats to its global standing.Amy Maguire, Associate Professor in Human Rights and International Law, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1728582021-11-30T06:39:37Z2021-11-30T06:39:37ZThe Jenkins review has 28 recommendations to fix parliament’s toxic culture – will our leaders listen?<figure><img src="https://images.theconversation.com/files/434622/original/file-20211130-27-ifgxm0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>In the wake of Brittany Higgins’ shocking allegations about being raped in a ministers’ office by a colleague, Prime Minister Scott Morrison initiated <a href="https://insidestory.org.au/come-in-spinner/">multiple inquiries</a>.</p>
<p>Arguably, the most significant was the <a href="https://humanrights.gov.au/CPWReview">independent review</a> into parliamentary workplaces, headed up by <a href="https://www.abc.net.au/news/2021-03-05/independent-inquiry-established-kate-jenkins-brittany-higgins/13191250">Sex Discrimination Commissioner Kate Jenkins</a> and supported by Labor and the crossbench. </p>
<p>The review has been underway since March, speaking to current and former MPs and employees at parliament house and its associated workplaces – such as electorate offices and the press gallery. On Tuesday, the 450-page report, <a href="https://humanrights.gov.au/set-standard-2021">Set the Standard</a>, was released. </p>
<p>As Jenkins observed, parliament house should be something “Australians look to with pride”. </p>
<p>This report represents a wholesale change strategy, and calls for leadership and accountability across a diverse parliamentary “ecosystem”. This new roadmap is grounded in the testimony and experiences of more than 1,700 contributors, including 147 former and current parliamentarians.</p>
<h2>What did the report find?</h2>
<p>The report included a survey of current parliamentarians and people currently working at parliament house (such as staffers, journalists and public servants). More than 900 people responded. </p>
<p>It found more than 37% of people currently in parliamentary workplaces have personally experienced bullying in a parliamentary workplace. As one interviewee noted: </p>
<blockquote>
<p>Frequently, like at least every week, the advice was go and cry in the toilet so that nobody can see you, because that’s what it’s like up here.</p>
</blockquote>
<p>It also found 33% of people currently in parliamentary workplaces have personally experienced sexual harassment in a parliamentary workplace. As one interviewee reported: </p>
<blockquote>
<p>Aspiring male politicians who thought nothing of, in one case, picking you up, kissing you on the lips, lifting you up, touching you, pats on the bottom, comments about appearance, you know, the usual. The point I make with that… was the culture allowed it, encouraged it.</p>
</blockquote>
<p>The report notes a devastating impact on people as a result of these experiences. This included an impact on their mental and physical health, confidence and ability to do their job, as well as their future career, “these experiences also caused significant distress and shame”.</p>
<figure class="align-center ">
<img alt="Sex Discrimination Commissioner Kate Jenkins" src="https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434665/original/file-20211130-23-1mmzzah.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Sex Discrimination Commissioner Kate Jenkins has been working on the parliamentary review since March.</span>
<span class="attribution"><span class="source">Dan Himbrechts/AAP</span></span>
</figcaption>
</figure>
<h2>The drivers behind this behaviour</h2>
<p>A critical part of the report looks at the drivers which contribute to misconduct in parliamentary workplaces. Participants also described risk factors which interact with these drivers to endanger their workplaces. </p>
<p>The drivers include: </p>
<ul>
<li><strong>power imbalances</strong>, where participants described a focus on the pursuit and exercise of power as well as insecure employment and high levels of power and discretion in relation to employment</li>
<li><strong>gender inequality</strong>, including a lack of women in senior roles </li>
<li><strong>lack of accountability</strong>, including limited recourse for those who experience misconduct</li>
<li><strong>entitlement and exclusion</strong>, or “a male, stale and pale monopoly on power in [the] building” </li>
</ul>
<p>The risk factors include: </p>
<ul>
<li><strong>unclear standards of behaviour</strong>, leading to confusion about the standards that apply </li>
<li><strong>a leadership deficit</strong>, such as a prioritisation of political gain over people management</li>
<li><strong>workplace dynamics</strong>, a “win at all costs” and high-pressure and high-stakes environment</li>
<li><strong>social conditions of work</strong>, including “significant” alcohol use and a “work hard, play hard” culture.</li>
<li><strong>employment structures and systems</strong>, such as a lack of transparent and merit-based recruitment.</li>
</ul>
<h2>Recommendations</h2>
<p>There are 28 recommendations in the report. </p>
<p>They include a statement of acknowledgement from parliamentary leaders, recognising people’s experiences of bullying, sexual harassment and sexual assault in parliamentary workplaces, targets to increase gender balance among parliamentarians and a new office of parliament staffing and culture. </p>
<figure class="align-center ">
<img alt="Former Liberal staffer Brittany Higgins." src="https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434633/original/file-20211130-28-66j48f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former Liberal staffer Brittany Higgins was briefed on the report before it was made public.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
</figcaption>
</figure>
<p>The report also wants to see the professionalisation of management practices for parliamentary staff and a code of conduct for parliamentarians and their staff. An independent commission would enforce these standards. </p>
<p>The report also calls for a new parliamentary health and well-being service.</p>
<h2>Where to from here</h2>
<p>Two key press conferences – from Morrison and Jenkins – accompanied the release of the Set the Standard report. But the change expected by the report requires much more than words – it requires concerted action.</p>
<p>Parliament now needs to endorse and implement a number of key accountability mechanisms to ensure that, as an institution, it ensures all building occupants are safe and respected at work. These include the office on parliamentary staffing and culture and independent parliamentary standards commission.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-decides-when-parliament-sits-and-what-happens-if-it-doesnt-172861">Who decides when parliament sits and what happens if it doesn't?</a>
</strong>
</em>
</p>
<hr>
<p>In addition, the report calls on the parliament itself to continue reflecting and thinking through appropriate changes. For example, the parliamentary work schedule is shown to drive a workplace culture that values “presence and endurance” over remote working and flexibility. Sitting in the chamber at 9pm does not necessarily equal productivity, particularly when it is propped up – among political staffers – with alcohol. </p>
<p>There is no simple solution here. Some argue long hours in parliament house mean longer periods away from parliament, in the electorate, with families. Others argue the work day should end – as it does in other workplaces – before dinner. Jenkins recommends parliament does its own review of the sitting schedule. Hopefully this will create “buy in” from parliamentarians, but reviews like this have been undertaken before (and have not led to cultural change).</p>
<p>For this report to lead to meaningful change, everyone in all the many, varied parliamentary workplaces has to take responsibility for the systemic inequality that drives toxic workplace behaviour in the building. </p>
<p>Responsibility is not equally distributed though. Morrison may call for a bipartisan approach, but he currently leads the government responsible for instigating the inquiry and implementing its recommendations. </p>
<p>His challenge will be in convincing the electorate he means it when he says he wants to fix this “very, very serious problem”. </p>
<hr>
<p><strong><em>If you or someone you know is impacted by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.</em></strong></p><img src="https://counter.theconversation.com/content/172858/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sonia Palmieri provided expert advice and contributed to the Review.</span></em></p>The review has been underway since March, speaking to current and former MPs and employees at parliament house.Sonia Palmieri, Gender Policy Fellow, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1601972021-05-04T02:56:23Z2021-05-04T02:56:23ZA ‘toxic’ and dehumanising culture: how Australian gymnastics needs to reform in wake of damning report<p>The Australian Human Rights Commission (AHRC) has released its <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/change-routine-report-independent-review-gymnastics">report</a> on the culture and practice of gymnastics in Australia. Titled Changing the Routine, the report was commissioned by Gymnastics Australia in August 2020, after athletes shared stories online and in the media of the harms they had suffered in gymnastics. </p>
<p>The AHRC found evidence of bullying, harassment, abuse, neglect, racism, sexism and ableism across the sport, which has been going on for decades. </p>
<p>Its five key findings were:</p>
<ul>
<li><p>current authoritarian coaching practices risk harm to athletes, and there is little coach accountability or regulation</p></li>
<li><p>there is inadequate understanding and prevention of the many behaviours that constitute child abuse and neglect in gymnastics</p></li>
<li><p>a win-at-all-costs culture that accepts negative and abusive coaching behaviours has resulted in the silencing of athlete voices and an increased risk of abuse</p></li>
<li><p>the focus on the “ideal body”, especially for young female athletes, combined with harmful weight-management and body-shaming practices can result in long-term eating disorders</p></li>
<li><p>gymnastics hasn’t appropriately addressed complaints of abuse and harm due to lack of expertise, resource and complicated governance.</p></li>
</ul>
<h2>A toxic and dehumanising culture</h2>
<p>The report did not investigate individual allegations of abuse. But it is damning in its analysis of gymnastics culture in Australia and the treatment of its athletes. Peppered throughout are harrowing quotes from 57 interviewees and 138 written submissions, detailing physical, psychological and sexual abuse. </p>
<p>The recurring theme is the dehumanising experiences of the gymnasts: voiceless, dismissed, and discarded if they failed to achieve athletic victories. The gymnasts repeatedly describe a “toxic” culture of control, which included being forced to train with injuries, being isolated and alone, and suffering long-lasting physical and emotional damage.</p>
<p>These stories echo what has been seen in the <a href="https://books.google.co.nz/books/about/Women_s_Artistic_Gymnastics.html?id=8GEPEAAAQBAJ&printsec=frontcover&source=kp_read_button&newbks=1&newbks_redir=0&redir_esc=y#v=onepage&q&f=false">research</a> for some time now. </p>
<p>One gymnast said:</p>
<blockquote>
<p>Over time, I was conditioned to accept being yelled at, be berated, humiliated, submissive, follow orders, not laugh, be emotionless and, worst of all, condition[ed] to accept that the coach[‘s] behaviour was normal, acceptable.</p>
</blockquote>
<p>Another explained the long-lasting impacts it had on her:</p>
<blockquote>
<p>We were trained to be really obedient […] without any kind of personality or any kind of individual traits […] always doing what was expected of us so we didn’t get punished. I think that’s had a huge impact on my life as an adult far beyond the years when I was doing gym and I think it’s really problematic […] I think it makes us ripe for abusive relationships.</p>
</blockquote>
<p>It’s also clear these negative experiences cause a lot of emotional turmoil for the athletes, whose “first love” became a source of abuse. One submission reads: </p>
<blockquote>
<p>I loved gymnastics; I hate the culture. I use past tense because the abusive and inhumane treatment I experienced ultimately [led] to my hatred of the sport. I might currently hate gymnastics, but I longed for it. I needed it. I could not live without [it]. I did not know who I was without it; it defined me.</p>
</blockquote>
<p>The commission concluded a “win at all costs” culture across the sport underpinned both authoritarian coaching and the dehumanising of athletes. </p>
<p>The goal of winning medals was prioritised over any concern for athlete welfare. And when gymnasts did win medals, this was seen to justify unacceptable behaviours. One submission explained: </p>
<blockquote>
<p>The importance of winning medals takes precedence over everything else.</p>
</blockquote>
<p>And this ethos wasn’t limited to high performance – it was seen in clubs and recreational gymnastics too.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/398517/original/file-20210504-17-18es6ng.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The report found a ‘win at all costs’ ethos caused enormous damage to its young athletes, even years after they left the sport.</span>
<span class="attribution"><span class="source">Dean Lewins/AAP</span></span>
</figcaption>
</figure>
<h2>Abuse in gymnastics is a gendered issue</h2>
<p>The AHRC noted that a key risk factor in the culture is not only the power imbalance between coach and athlete, which is seen in many sports, but also in the gendered nature of gymnastics.</p>
<p>Not only does it have a high proportion of female participants, those athletes are also subjected to negative stereotypes, ideals and expectations around gender. This is essential to understanding the risk of abuse in gymnastics, and the AHRC’s observation is well supported by the research.</p>
<p>The research on women’s artistic gymnastics shows the sport was <a href="https://theconversation.com/girls-no-more-why-elite-gymnastics-competition-for-women-should-start-at-18-143182">designed to showcase stereotypical femininity</a>. This expectation wasn’t limited to bodily movement. It included the way female gymnasts were expected to behave: <a href="https://theconversation.com/gymnastics-nz-has-apologised-for-past-abuses-now-it-must-empower-athletes-to-lead-change-154183">obedient, passive and docile</a>.</p>
<p>In my <a href="https://www.press.uillinois.edu/books/catalog/78wzk8wn9780252043772.html">book</a>, I argue these gendered expectations of gymnasts, coupled with the age (often gymnasts begin training seriously from five and traditionally peaked around 16) and perceived expertise difference between the child athletes and adult coaches, is a compounding power imbalance that makes female gymnasts more vulnerable to abuse.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/girls-no-more-why-elite-gymnastics-competition-for-women-should-start-at-18-143182">Girls no more: why elite gymnastics competition for women should start at 18</a>
</strong>
</em>
</p>
<hr>
<h2>Where to now?</h2>
<p>Gymnastics Australia described the report as “<a href="https://www.gymnastics.org.au/Ga/Posts/News_Articles/2021/05_May/Australian_Human_Rights_Commission_2021_Independent_Report_into_Gymnastics_in_Australia.aspx">confronting</a>”. It acknowledged the systemic issues that had negatively affected athlete well-being, and expressed “deep concern” over the gymnasts’ experiences described in the report. It apologised unreservedly to the athletes and their families, and committed itself to oversee the response to the report.</p>
<p>While this apology is an important first step, gymnasts are yet to see any organisation take <em>responsibility</em> for the harms gymnasts suffered under their watch. The culture cannot change without this essential component of accountability. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/survival-of-the-fittest-the-changing-shapes-and-sizes-of-olympic-athletes-63184">Survival of the fittest: the changing shapes and sizes of Olympic athletes</a>
</strong>
</em>
</p>
<hr>
<p>With the framework provided by this review, clubs and state institutions and organisations might undertake investigations into their own roles in athlete harm. Then they can begin the process of acknowledging institutional failures and the damage done to young gymnasts, and issue genuine apologies for their acts. </p>
<p>This kind of accountability is where cultural change begins. It’s also part of the <a href="https://www.abc.net.au/news/2021-05-03/gymnastics-australia-report-human-rights-commission-culture/100111962">redress process that athletes are seeking</a>.</p>
<p>What better way to address the silencing of athlete voices than to listen to them?</p><img src="https://counter.theconversation.com/content/160197/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Georgia Cervin worked for Gymnastics Western Australia for a brief period in 2017, and has since 2020 been advocating for gymnasts in New Zealand.</span></em></p>A scathing report has detailed physical, psychological and sexual abuse within Australian gymnastics, particularly for the young girls it was meant to be nurturing.Georgia Cervin, Honorary Research Fellow, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1295502020-02-20T01:56:58Z2020-02-20T01:56:58ZFor Australia to be respected on human rights, it needs to look deeper into its own record<p>Australia has just entered its final year of its membership on the UN Human Rights Council. This position was <a href="https://dfat.gov.au/international-relations/international-organisations/un/unhrc-2018-2020/Pages/australias-membership-unhrc-2018-2020.aspx">won</a> on the strength of two key arguments: </p>
<ul>
<li><p>Australia would be the first Pacific nation to sit on the body, founded in 2007</p></li>
<li><p>our long-standing commitments to civil and political rights made us a safe set of hands among a membership that includes several dictatorships.</p></li>
</ul>
<p>This championing of Australia’s record, however, sits oddly beside our own well-publicised violations of human rights, most visibly on asylum seekers and Indigenous rights. </p>
<p>My new book, <a href="https://www.cambridge.org/au/academic/subjects/history/australian-history/human-rights-twentieth-century-australia?format=HB">Human Rights in Twentieth Century Australia</a>, probes this contradiction. One of the questions I grapple with is how a nation that crows of its achievements in certain areas of human rights can so flagrantly breach others.</p>
<p>One answer is that Australia has long used its British heritage of civil and political rights and higher average standard of living to discount more expansive social, economic and cultural rights, particularly when it comes to questions of race and citizenship.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/with-a-seat-on-the-un-human-rights-council-australia-must-fix-its-record-on-indigenous-rights-86060">With a seat on the UN Human Rights Council, Australia must fix its record on Indigenous rights</a>
</strong>
</em>
</p>
<hr>
<h2>Australia’s patchy human rights history</h2>
<p>It is often forgotten that Australian representatives joined those of seven other nations to draft the <a href="https://www.un.org/en/universal-declaration-human-rights/">Universal Declaration of Human Rights</a>, adopted by the UN General Assembly in 1948. </p>
<p><a href="http://adb.anu.edu.au/biography/evatt-herbert-vere-bert-10131">Attorney-General Herbert Vere Evatt</a> headed the negotiating team. He argued for a strong document enforceable by an international court, which would defend traditional “negative” rights like freedom of expression, alongside “positive” ones such as the right to work.</p>
<p>Even at this high point of global consensus following the second world war, Australia’s double-handed approach to human rights was apparent. While Evatt likened the UDHR to Australia’s sentimental belief that everyone deserves a “fair go”, he guaranteed the White Australia Policy would not be threatened by such a document. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=494&fit=crop&dpr=1 600w, https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=494&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=494&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=621&fit=crop&dpr=1 754w, https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=621&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/316312/original/file-20200220-11040-kvdnnl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=621&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Herbert Vere Evatt (left) and Anthony Eden, the UK foreign secretary, at a UN meeting in 1945 in San Francisco.</span>
<span class="attribution"><span class="source">United Nations</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Using language that echoes Australia’s asylum policy today, he <a href="https://parlinfo.aph.gov.au/parlInfo/download/hansard80/hansardr80/1949-09-07/toc_pdf/19490907_reps_18_204.pdf;fileType=application%2Fpdf#search=%22evatt%201940s%201949%2009%22">said</a></p>
<blockquote>
<p>There is no relationship between the Declaration of Human Rights […] and the exercise by a country of its national right […] to determine the composition of its own people.</p>
</blockquote>
<p>This argument for the primacy of so-called “domestic jurisdiction” was also extended to the rights of Indigenous peoples by Evatt and other Australian leaders at the time, meaning their rights were considered to be only of national concern. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-human-rights-debate-has-always-been-political-68070">Australia’s human rights debate has always been political</a>
</strong>
</em>
</p>
<hr>
<p>The Communist newspaper Tribune captured this in a cartoon <a href="https://trove.nla.gov.au/newspaper/page/22669168">depicting</a> the worldly Evatt set against an enchained Indigenous man to whom rights had little meaning.</p>
<p>By positioning itself as a responsible “<a href="https://www.tandfonline.com/doi/full/10.1080/10357718.2011.607149">middle power</a>” on human rights, while also insisting it be judged by a scorecard of its own choosing, a benchmark was set for future Australian governments.</p>
<p>Human rights have, henceforth, been understood very restrictively in Australia.</p>
<h2>Challenges to Australia’s human rights policies</h2>
<p>Despite such evasions, Indigenous people, refugees and other social movements have long used human rights discussions and debates to further social and political agendas. </p>
<p>Chinese wartime refugees, dubbed a “<a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;orderBy=customrank;page=0;query=%22recalcitrant%20minority%22%20Decade%3A%221940s%22;rec=2;resCount=Default">recalcitrant minority</a>” by Immigration Minister Arthur Calwell, were threatened with deportation in 1949. They petitioned the newly formed Australian Human Rights Commission, <a href="https://trove.nla.gov.au/newspaper/article/195104330?searchTerm=%22in%20the%20name%20of%20humanity%22%20wives&searchLimits=l-decade=194%7C%7C%7Cl-year=1949">protesting</a> “in the name of humanity” for their protection “from the arbitrary and inhuman actions” of the minister. </p>
<p>Indigenous Australians also began petitioning the commission in the 1960s, challenging governmental obfuscations on human rights directly. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/un-slams-australias-human-rights-record-87169">UN slams Australia’s human rights record</a>
</strong>
</em>
</p>
<hr>
<p>While Australia insisted the country’s Indigenous policy accorded with the UN’s language of equality, a 1970 petition by five Indigenous Australians - delivered in person to the UN offices in New York - declared nothing had changed. </p>
<p>Alleging the ongoing “literal, physical destruction of our people”, the petitioners <a href="https://recordsearch.naa.gov.au/SearchNRetrieve/Interface/ViewImage.aspx?B=247756">demanded</a> Australia be judged </p>
<blockquote>
<p>in light of what it does […] rather than what it says.</p>
</blockquote>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/316310/original/file-20200220-11011-13t08ma.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Indigenous peoples have been petitioning the Human Rights Commission for greater recognition of their rights since the 1960s.</span>
<span class="attribution"><span class="source">Danny Casey/AAP</span></span>
</figcaption>
</figure>
<h2>From collective to individual rights</h2>
<p>Starting in the late 1970s, the focus of international human rights shifted. Protecting individuals from suffering and violence replaced the fight for collective economic and social rights that defined the era of decolonisation in the 1950s and ‘60s. </p>
<p>Groups like Amnesty International, which <a href="https://www.nobelprize.org/prizes/peace/1977/ceremony-speech/">won</a> the Nobel Peace Prize in 1977, made political prisoners and basic sufficiency the watchwords of rights activism.</p>
<p>Economic, social and cultural rights were thus downgraded in importance compared to civil and political ones. Such a focus imposed few obligations on Australia, already a constitutional democracy governed by the rule of law. </p>
<p>Gareth Evans, attorney-general under the Hawke government, <a href="https://www.cambridge.org/core/books/human-rights-in-twentiethcentury-australia/implementing-rights/11215B7699F087F0CF64992D555F3CDE">said</a> in 1978 the very idea of economic and social rights was:</p>
<blockquote>
<p>beyond the scope of the topic ‘human rights’ as that term has meaning in this country. </p>
</blockquote>
<p>Since the late 2000s, though, the ground has moved quickly. On one hand, Australia’s continued violation of Indigenous rights has garnered more international condemnation. </p>
<p>The failure to deliver on the promise of <a href="https://theconversation.com/constitutional-recognition-for-indigenous-australians-must-involve-structural-change-not-mere-symbolism-131751">constitutional recognition</a> – one of the “pillars” of Australia’s Human Rights Council bid – seems particularly egregious. </p>
<p>The Declaration on the Rights of Indigenous Peoples in 2007 has also created reporting and compliance mechanisms unavailable to earlier generations. Under this declaration, the UN has already <a href="http://unsr.jamesanaya.org/docs/countries/2010_report_australia_en.pdf">condemned</a> the so-called “Intervention” in the Northern Territory and the <a href="https://www.un.org/development/desa/indigenouspeoples/news/2016/08/statement-by-the-permanent-forum-on-indigenous-issues-on-the-don-dale-youth-detention-center-nt-australia/">revelations</a> of abuse at the Don Dale detention centre.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/constitutional-recognition-for-indigenous-australians-must-involve-structural-change-not-mere-symbolism-131751">Constitutional recognition for Indigenous Australians must involve structural change, not mere symbolism</a>
</strong>
</em>
</p>
<hr>
<p>Western governments like Australia are also back in the crosshairs on economic rights.</p>
<p>Kumi Naidoo, Secretary-General of Amnesty International, <a href="https://mondediplo.com/2018/12/04rights">acknowledged</a> in December 2018 that Amnesty’s focus on political prisoners meant issues of poverty, inequality, housing, food and sanitation had largely disappeared from activists’ lexicon. </p>
<p>It’s now necessary to view human rights as a “package”, Naidoo said, including renewed focus on economic rights. And importantly, western and non-western nations can - and must - be judged on an equal footing. </p>
<p>Australia has already seen what this future looks like. The UN’s special rapporteur on extreme poverty, Phillip Alston, <a href="https://undocs.org/A/74/493">recently said</a> in a widely publicised report the so-called “Robo Debt” and Cashless Welfare Card schemes were bringing forth a “digital welfare dystopia”. </p>
<p>Australia should expect more uncomfortable finger pointing in future. If we are to remain a human rights leader at home and abroad, the ranking of some rights as more important than others must come to an end.</p><img src="https://counter.theconversation.com/content/129550/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon Piccini does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia has long been at the forefront of human rights internationally, while side-stepping questions about its own treatment of Indigenous peoples and refugees.Jon Piccini, Lecturer, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1226182019-08-29T06:20:56Z2019-08-29T06:20:56ZThe government has released its draft religious discrimination bill. How will it work?<p>Federal Attorney-General Christian Porter has <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx?fbclid=IwAR1PizVI_iZLtVyV6yE5id5UoAZPpUwTL35tbvfRONx6ojocwr_nsEkSETU">released</a> a draft package of religious freedom bills, including the much-anticipated Religious Discrimination Bill.</p>
<p>These bills respond to earlier <a href="https://www.pmc.gov.au/domestic-policy/religious-freedom-review">inquiries</a> into the protection of religious freedom under Australian law. They implement some of the <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Freedom-of-Religion.aspx">recommendations</a> of the Expert Panel on Religious Freedom (known as the Ruddock review).</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-his-miracle-election-will-scott-morrison-feel-pressure-from-christian-leaders-on-religious-freedom-117798">After his 'miracle' election, will Scott Morrison feel pressure from Christian leaders on religious freedom?</a>
</strong>
</em>
</p>
<hr>
<p>The government has committed to considering any <a href="https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx?fbclid=IwAR28mFX5YwJfyH9oDSeWDKtQh6vn23VHkiqZt-AoUs4pd1iI33ur6I5rNZg">submissions</a> received by October 2 2019 in its development of these bills. It plans to introduce final draft legislation to parliament later in October.</p>
<p>The government reportedly wishes to pass this legislation before <a href="https://www.afr.com/politics/federal/pm-stresses-unity-on-religious-freedom-push-20190702-p523dj">Christmas</a>. </p>
<h2>What do these bills seek to achieve?</h2>
<p>The Religious Discrimination Bill forms the crux of the legislative package. </p>
<p>This bill does not create a positive right to freedom of religion – often termed a “sword”. </p>
<p>Instead, it aims to provide a “<a href="https://www.sbs.com.au/news/government-says-religious-freedom-laws-will-be-a-shield-not-sword">shield</a>” by prohibiting discrimination on the basis of religious belief or activity in the following areas of public life: </p>
<ul>
<li>work</li>
<li>education</li>
<li>access to premises</li>
<li>goods, services and facilities</li>
<li>accommodation</li>
<li>land</li>
<li>sport and clubs.</li>
</ul>
<p>The Australian Human Rights Commission would be empowered to inquire into and conciliate complaints of unlawful discrimination on the grounds of religious belief or activity.</p>
<p>Porter represents these proposed reforms as <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx">complementary and similar</a> to existing federal laws that prohibit discrimination on the grounds of race, sex, disability and age.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/religious-discrimination-legislation-would-hit-big-companies-harder-than-small-business-122623">Religious Discrimination legislation would hit big companies harder than small business</a>
</strong>
</em>
</p>
<hr>
<p>In one sense, this is true. The bill prohibits discrimination largely in the same terms as existing discrimination laws, but adds the “religious belief or activity” ground.</p>
<p>This means that, for example, it would be unlawful to terminate a person’s employment on the basis of them being Catholic or Muslim or Jewish.</p>
<p>Such protection already exists in all state and territory laws except in South Australia and New South Wales.</p>
<p>“Religious belief or activity” is also defined symmetrically in the bill. It includes holding a religious belief or engaging in religious activity, as well as <em>not</em> holding a religious belief or <em>not</em> engaging in religious activity.</p>
<p>This is important because it provides equal protection to people of a religious faith and those of no religious faith. Your boss would also be prohibited from firing you on the basis that you are <em>not</em> religious.</p>
<h2>What are the key differences?</h2>
<p>The differences from other federal discrimination laws are mostly contained in section 8 of the bill.</p>
<p>First, section 8(3) clearly targets an <a href="https://www.abc.net.au/news/2019-08-01/israel-folau-court-action-against-rugby-australia-waratahs/11372714">Israel Folau-type situation</a>. </p>
<p>This section prohibits indirect discrimination, which is standard practice in discrimination law. This is where the imposition of a condition or requirement disadvantages a certain group of people and is not reasonable.</p>
<p>For example, an employer could impose a rule that all employees must attend work from 9-11am on Sundays, because the employer happens to find this a productive time to work. This would disadvantage those who may wish to practise their faith at that time, and appears to have no reasonable basis. </p>
<p>However, the section goes on to focus on employer conduct rules, which are not mentioned in any other federal discrimination laws.</p>
<p>An employer conduct rule under this section is not reasonable if it would restrict or prevent an employee “from making a statement of belief at a time other than when the employee is performing work”, unless the statement is malicious or would harass, vilify or incite hatred against a person or group.</p>
<p>A code of conduct prohibiting employees from making offensive comments on social media outside of work could therefore be unlawful discrimination.</p>
<p>This provision only applies, though, to employers with annual revenue of at least A$50 million.</p>
<p>Second, there is a provision in section 8(5) allowing conscientious objections by health practitioners.</p>
<p>This means that where a health practitioner is required by their employer to provide a service to which they object on religious grounds, this requirement will likely be unreasonable – and therefore discriminatory.</p>
<p>This could allow individual doctors to refuse to perform a wide range of services on religious grounds, including abortion, assisted suicide and procedures for transgender patients. The Trump administration <a href="https://www.nytimes.com/2019/05/13/opinion/can-doctors-refuse-patients.html?fbclid=IwAR2OV06YnRMbwnRtAq-ym4e7-2T7H4OXozAHJyjbUQFNLQhuVvkn4g34qpY">introduced a similar rule</a> earlier this year.</p>
<p>Third, despite <a href="https://www.theguardian.com/australia-news/2019/jul/12/christian-porter-says-religious-freedom-bill-wont-erode-state-lgbt-protections">Porter previously stating</a> that the Religious Discrimination Bill was not intended to override state laws, it does just that.</p>
<p><a href="http://classic.austlii.edu.au/au/legis/tas/consol_act/aa1998204/s17.html">Section 17(1)</a> of the Tasmanian Anti-Discrimination Act prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of attributes such as disability, sex, sexual orientation and gender identity.</p>
<p>Section 41 of the Religious Discrimination Bill states that “a statement of belief does not contravene section 17(1)” of the Tasmanian Act unless it is malicious or is likely to harass, vilify or incite hatred or violence against a person or group of persons. </p>
<p>It also provides that a statement of belief does not constitute discrimination for the purposes of <em>any</em> discrimination law in Australia – whether at federal, state or territory level.</p>
<p>This is rare in discrimination law, where federal and state systems are <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s10.html">usually seen to be</a> separate and concurrent.</p>
<p>It would mean statements based on religious belief that offend, humiliate, insult or intimidate women, LGBTIQ+ people or persons with disabilities would be lawful, regardless of what state laws provide. </p>
<p>The only way such statements would be unlawful under any discrimination law is if they met the higher threshold of harassment, vilification or incitement of hatred.</p>
<h2>Short consultation limits capacity for scrutiny</h2>
<p>Prior to the bills’ release, the shadow attorney-general, Mark Dreyfus, <a href="https://www.theguardian.com/australia-news/2019/aug/29/coalition-to-release-religious-discrimination-bill-as-labor-urges-greater-scrutiny">accused</a> the government of seeking to rush the bill through parliament without sufficient consultation. He said:</p>
<blockquote>
<p>The Liberals have been arguing about religious discrimination for more than two years but appear to want to give the rest of the country just weeks to debate it. </p>
</blockquote>
<p>The attorney-general notes that the proposed reforms reflect an <a href="https://www.attorneygeneral.gov.au/Media/Pages/morrison-government-delivers-on-religious-reforms-29-august-2019.aspx">election commitment</a>. </p>
<p>Yet there will be just four weeks of community consultation, and just 16 parliamentary sitting days remain until the end of the year. This provides a short window in which to consider complex changes to Australian law.</p>
<p>In contrast, the <a href="https://www.attorneygeneral.gov.au/Media/Pages/Review-into-the-Framework-of-Religious-Exemptions-in-Anti-discrimination-Legislation-10-april-19.aspx">Australian Law Reform Commission</a> has been given 12 months to consider the question of religious organisations’ exemptions from discrimination law – which form just a handful of provisions. It won’t report until April 2020, including on matters that cut across some of the proposals in these bills.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347">Ruddock report constrains, not expands, federal religious exemptions</a>
</strong>
</em>
</p>
<hr>
<p>One issue with the brief consultation period is that it limits scrutiny of how today’s proposals vary from the recommendations of the Ruddock review. </p>
<p>For example, the Religious Discrimination Bill establishes a position of Freedom of Religion Commissioner in the Australian Human Rights Commission. The commissioner would be responsible for strengthening community understanding of religious freedom, advocating for religious freedom issues, and promoting compliance with the anticipated Religious Freedom Act.</p>
<p>Yet the <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf">Ruddock report</a> recommended that protection of religious freedom should occur within the existing commissioner model, not by spending an <a href="https://www.dropbox.com/s/wvxb516r6u5s92f/Freedom%20for%20Faith%20submission%20to%20Ruddock%20Review.pdf?dl=0">estimated</a> A$1.25-1.5 million a year on a new commissioner.</p>
<p>Considering the unique aspects of the proposed Religious Discrimination Bill, a longer consultation period should be provided to ensure appropriate evaluation. </p>
<p>But, however long the consultation process, any drastic departures from existing discrimination law models should be carefully scrutinised to assess why and how religion should be given any special status.</p><img src="https://counter.theconversation.com/content/122618/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the unique aspects of the proposed bill, there should be a longer consultation period to examine why religious freedoms should be prioritised over other freedoms.Liam Elphick, Honorary Research Fellow, Law School, The University of Western AustraliaAmy Maguire, Associate Professor, University of NewcastleAnja Hilkemeijer, Lecturer in Law, University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/882382017-12-05T19:16:10Z2017-12-05T19:16:10ZTen things Australia can do to be a human rights hero<figure><img src="https://images.theconversation.com/files/196846/original/file-20171129-28913-14q42ar.jpg?ixlib=rb-1.1.0&rect=0%2C1946%2C3591%2C1639&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Effective leadership requires leading by example, but Australia’s human rights record has drawn increasing criticism at home and abroad. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/froge/24865242966/in/album-72157664247376242/">Andrew Hill/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p><em>This article is part of the <a href="https://theconversation.com/au/topics/democracy-futures">Democracy Futures</a> project, a <a href="http://sydneydemocracynetwork.org/democracy-futures/">joint global initiative</a> between The Conversation and the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.</em></p>
<hr>
<p>Sunday is Human Rights Day. December 10 marks 69 years since the United Nations General Assembly adopted the <a href="http://www.un.org/en/universal-declaration-human-rights/index.html">Universal Declaration of Human Rights</a> on December 10, 1948. With the 70th anniversary coming up in 2018, the UN has launched <a href="http://www.standup4humanrights.org/en/">Stand Up 4 Human Rights</a>, a year-long campaign to bring the ideals of the declaration closer to reality. </p>
<p>As a leader in the <a href="https://www.humanrights.gov.au/publications/australia-and-universal-declaration-human-rights">framing of the UN declaration</a> and one of the world’s oldest democracies, Australia prides itself on its commitment to democracy and human rights. The Australian government has an excellent opportunity to show leadership in promoting these values at home and abroad when it takes up a seat on the UN Human Rights Council from 2018. </p>
<p>In this role, Australia has <a href="http://dfat.gov.au/international-relations/international-organisations/Pages/australias-membership-unhrc-2018-2020.aspx">pledged</a> to be “an international human rights leader” and to advance human rights with “active, practical advocacy, sensitivity and fairness, and a willingness to speak out against human rights violations and abuses”.</p>
<p>However, effective leadership requires leading by example, and Australia’s human rights record has <a href="https://www.theguardian.com/law/2015/nov/10/un-countries-line-up-to-criticise-australias-human-rights-record">drawn increasing criticism in recent years</a>. </p>
<h2>What can we do to strengthen our human rights framework?</h2>
<p>We recently brought together Australian human rights scholars to answer this question. <a href="http://www.tandfonline.com/toc/rjhu20/23/2?nav=tocList&">Our collection</a> of articles in the Australian Journal of Human Rights, entitled <em>Vanguard or laggard? Democracy and human rights in Australia</em>, details the relationship between democracy and human rights, and provides a roadmap for improving Australia’s democratic and human rights record.</p>
<p>Democracy should generate protection for human rights through accountability mechanisms that work across three axes:</p>
<ul>
<li><p><strong>horizontal accountability</strong> refers to the role of the judiciary and integrity institutions such as the ombudsman and human rights commission</p></li>
<li><p><strong>vertical accountability</strong> refers to elections and the participatory role of citizens</p></li>
<li><p><strong>diagonal accountability</strong> denotes the role of free speech, media and civil society organisations in holding governments to account.</p></li>
</ul>
<p>There is no clear-cut nexus between Australian democracy and human rights across these areas of accountability. And the conditions necessary for each form of accountability to operate successfully are not as strong as is generally assumed. </p>
<p>Accountability mechanisms are often overshadowed by parliamentary supremacy in our version of Westminster democracy. This leaves many citizens vulnerable to rights infringements.</p>
<p>A core weakness in Australia’s vertical accountability is the lack of an entrenched or statutory bill of rights. This leaves the executive and legislature with primary control over human rights determinations. </p>
<p>Voters decide who these legislators are and can change them at elections if they are unhappy with their decisions on rights issues. History suggests voters have indeed punished governments that fail to act on majority rights concerns. </p>
<p>However, protection for minority rights, and the rights of <a href="https://theconversation.com/we-just-black-matter-australias-indifference-to-aboriginal-lives-and-land-85168">Indigenous Australians</a> and <a href="https://theconversation.com/as-trump-ups-the-ante-executive-powers-should-worry-australians-too-78763">refugees</a> in particular, do not attract sufficient support at the ballot box. Not surprisingly, government policies reflect this electoral reality.</p>
<p>Without a bill of rights, minorities and others whose rights are threatened also have limited capacity to trigger horizontal accountability mechanisms for protection. Aside from some exceptional rulings, such as the High Court’s <a href="http://lawgovpol.com/implied-rights-constitution/">implied rights determinations</a>, Australian judges have generally been reluctant to read the law broadly to incorporate rights. </p>
<p>Further, the Australian Human Rights Commission has a limited mandate. It is also <a href="http://www.smh.com.au/federal-politics/political-news/revealed-abbott-government-tried-to-remove-gillian-triggs-as-head-of-the-australian-human-rights-commission-20150213-13du7s.html">vulnerable</a> to <a href="http://www.heraldsun.com.au/news/australian-human-rights-commission-president-gillian-triggs-criticises-federal-government-cuts-to-her-budget/news-story/d8b102a9467516415cf62e20aa4afb80">funding cuts</a> and <a href="http://www.theaustralian.com.au/national-affairs/section-18c-attorney-general-george-brandis-slams-human-rights-commission/news-story/0fffc094d7d444809d27bb1dffd71cc8">political attacks</a> when government perceives the commission to have overstepped its mark. These deficiencies have become more obvious in recent years with the rise of the “<a href="https://www.washingtonpost.com/news/morning-mix/wp/2014/10/07/how-australia-just-became-a-national-security-state/?utm_term=.d663c3376feb">security state</a>”.</p>
<p>Diagonal accountability mechanisms, including a free press and civil society, have been able to flourish in Australia. Even so, there are major limitations to their ability to pursue rights concerns. We have seen increasing media concentration, funding cuts to public broadcasters and the extension of <a href="https://www.hrlc.org.au/opinion/2017/2/3/we-must-protest-restrictions-on-our-right-to-protest">legislative restrictions</a> on civil society.</p>
<p>Such developments reduce the potential for these democratic actors to bring problems to light and inform governments and voters about rights issues.</p>
<p>Unless or until Australians decide to support greater rights protections, whether through constitutional or legislative action, these problems are likely to remain. </p>
<p>Fixing these problems is important. This is not only because human rights are important in themselves, but also because democracy requires a basic level of respect for human rights to function properly.</p>
<h2>Ten things Australia can do to protect rights</h2>
<p>With Australia becoming a member of the UN Human Rights Council, it is more important than ever that we get our own house in order, if we want to be a model for good democratic practice underpinned by a strong human rights framework.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196854/original/file-20171129-28862-fi5miy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Having secured a seat at the UN Human Rights Council, Australia needs to get its own house in order.</span>
<span class="attribution"><span class="source">UN Geneva/flickr</span></span>
</figcaption>
</figure>
<p>Here’s a start: these ten broad steps are eminently doable. While not covering all the gaps, these will get us a long way toward more robust human rights protection in Australia.</p>
<p><strong>1. Adopt a bill of rights</strong></p>
<ul>
<li>A bill of rights will increase the capacity of minorities and others whose rights are threatened to seek protection from the courts, if and when parliament fails to do so.</li>
</ul>
<p><strong>2. Protect freedom of speech</strong></p>
<ul>
<li><p>Reverse funding cuts to public media outlets.</p></li>
<li><p>Achieve a better balance between security laws and freedom of speech by adding public interest disclosure protections to national security laws.</p></li>
</ul>
<p><strong>3. Protect the rule of law and integrity institutions</strong></p>
<ul>
<li>Strengthen the independence of integrity institutions such as statutory officeholders (information commissioners, human rights commissioners). This includes mandating transparent, arm’s length and merit-based selection criteria for appointments to these offices. Stronger statutory guarantees of adequate funding are also needed.</li>
</ul>
<p><strong>4. Protect the right to vote</strong></p>
<ul>
<li><p>Strengthen our compulsory voting laws because of their beneficial (yet generally unrecognised) effects on human rights protection, particularly their demonstrated capacity to protect rights such as equality before the law, freedom from discrimination and equal voting power.</p></li>
<li><p>Continue to support electoral commissions in their efforts to achieve universal or near-universal electoral participation.</p></li>
</ul>
<p><strong>5. Protect freedom of association</strong></p>
<ul>
<li><p>Support the flourishing of civil society organisations by removing restrictive protest laws.</p></li>
<li><p>Ensure a fair and nonpartisan regulatory framework for funding civil society organisations.</p></li>
</ul>
<p><strong>6. Strengthen rights protections for Indigenous Australians</strong></p>
<ul>
<li><p>Dismantle the intellectual and legal framework that creates barriers to recognising and respecting Indigenous Australians.</p></li>
<li><p>Be open to Indigenous perspectives and realities and make a genuine effort to right historical wrongs.</p></li>
<li><p>Strengthen racial discrimination laws to prevent the abuse of the special measures provisions of the Racial Discrimination Act to the detriment of Indigenous Australians.</p></li>
</ul>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/196856/original/file-20171129-28866-1sjqw92.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Australia must not forget that seeking asylum is a human right.</span>
<span class="attribution"><span class="source">Takver/flick</span></span>
</figcaption>
</figure>
<p><strong>7. Strengthen rights protections for asylum seekers</strong></p>
<ul>
<li><p>Uphold human right obligations that are owed to asylum seekers on the presumption that they may well be genuine refugees (as the 1951 Convention on Refugees that Australia has signed requires). This includes closing all offshore processing and detention centres.</p></li>
<li><p>Promote the human rights of all migrants and their families as Australia’s representatives have promised at UN meetings such as the <a href="http://refugeesmigrants.un.org/refugees-compact">Global Compact for Refugees and Migrants</a>.</p></li>
</ul>
<p><strong>8. Strengthen rights protections for women</strong></p>
<ul>
<li>Improve women’s social and economic rights to enable them to participate fully and equally in Australian society. This includes closing the gender pay gap, increasing access to affordable child care and tackling the poverty facing disadvantaged women including single mothers, Indigenous women, older women, women and girls with disabilities, and women facing domestic violence and sexual harassment in the workplace and community.</li>
</ul>
<p><strong>9. Strengthen rights protections for poor Australians</strong></p>
<ul>
<li>Implement a policy framework to better uphold our international commitments to protect the economic and social rights of vulnerable Australians. This includes acting on housing affordability and homelessness, protecting vulnerable workers, reducing unemployment and underemployment, and increasing support for the poorest households.</li>
</ul>
<p><strong>10. Implement marriage equality</strong></p>
<ul>
<li>Honour the outcome of the Marriage Law Postal Survey by legalising marriage equality.</li>
</ul>
<p>Happy Human Rights Day everyone.</p><img src="https://counter.theconversation.com/content/88238/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carolien van Ham receives funding from the Australian Research Council's DECRA funding scheme (project number RG142911, project name DE150101692). The views expressed in this article are the views of the author, based on the author's research, and in no way represent the views of the ARC.</span></em></p><p class="fine-print"><em><span>Lisa Hill receives funding from the Australian Research Council. The views expressed in this article are those of the author and in no way represent the views of the ARC. </span></em></p><p class="fine-print"><em><span>Louise Chappell receives funding from the Australian Research Council and from the European Researcg Council. The views expressed in this article belong to the authors and no way represent the views of the ARC. </span></em></p>On Human Rights Day, and with Australia set to take up a seat on the UN Human Rights Council, here’s a must-do list for this country to become a credible advocate for human rights.Carolien van Ham, Lecturer in Comparative Politics, UNSW SydneyLisa Hill, Professor of Politics, University of AdelaideLouise Chappell, Director of the Australian Human Rights Institute, Professor Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/866232017-11-20T03:10:06Z2017-11-20T03:10:06ZUniversities need to rethink policy on student-staff relationships<figure><img src="https://images.theconversation.com/files/193731/original/file-20171108-30111-1571aa8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>The Human Rights Commission report, <a href="https://www.humanrights.gov.au/our-work/sex-discrimination/publications/change-course-national-report-sexual-assault-and-sexual">Change the Course: National Report on Sexual Assault and Sexual Harassment at Australian Universities</a>, was published in August 2017. </p>
<p>In response, Australian universities have taken various actions to address sexual assault and harassment on their campuses. Most are directed at making universities safer places to study and live. Measures <a href="https://www.universitiesaustralia.edu.au/Media-and-Events/media-releases/University-action-to-prevent-and-address-sexual-assault-and-sexual-harassment#.Wfu2wxOCxBx">include</a> introducing mandatory responding to disclosure and training for all staff, teaching students about consent, and increasing the number of specialist counselling staff.</p>
<h2>Framing staff-student relationships</h2>
<p>Universities should also review policy governing staff-student relationships. Across the sector, these relationships are framed as consensual and are couched in unhelpful, ambiguous language. We conducted a review of staff-student relationship policies in Australian universities and international policies. We found the following similarities across most institutions.</p>
<p>Staff are generally discouraged from entering into sexual relationships with students. Discouragement aside, universities recognise that these relationships may occur. Many universities express reluctance to interfere in the “personal” lives of staff and students. Most set out some conditions that should apply when the discouraged but inevitable relationships form.</p>
<p>Conditions may include the staff member disclosing the relationship to the university. This may lead to adjustments to the duties of that staff member, which are then outlined in varying degrees of detail. Where specified, these may include removing the staff member from any assessment of the student’s work. They may also not be able to make decisions regarding the award of scholarships or other distinctions. In the case of graduate research candidates, it may involve removing the staff member as senior or main supervisor. However, they may still be able to serve on the supervision team.</p>
<p>Many Australian universities then link this policy with their Conflict of Interest policy. This signals that the biggest concern about staff-student sexual relationships is the possibility of conflicts of interest emerging for the staff member. This does little to address the potentially damaging impact of these relationships on students, and on the learning and research environment for other students. </p>
<h2>We need better professional standards</h2>
<p>The health care sector has much clearer <a href="http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx">professional standards</a>. For health care practitioners, professional boundaries are recognised as integral to good practitioner–client relationships. Accordingly, professional standards prohibit sexual relationships entirely. This lasts either for the duration of the professional association or for some period (up to two years <a href="https://www.psychology.org.au/Assets/Files/APS-Code-of-Ethics.pdf">in some cases</a>) after the professional relationship has ended.</p>
<p>The Medical Board of Australia <a href="http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Sexual-boundaries-guidelines.aspx">states</a>: </p>
<blockquote>
<p>A doctor should not enter into a sexual relationship with a patient even with the patient’s consent. </p>
</blockquote>
<p>For psychologists and counsellors, this prohibition extends to former clients and anyone closely related to the client. </p>
<p>The code of professional conduct set out by the Nursing and Midwifery Board of Australia <a href="http://www.nursingmidwiferyboard.gov.au/Codes-Guidelines-Statements/Professional-standards.aspx">notes</a> the vulnerability of clients under their care, and their relative powerlessness, must be recognised and managed. Sexual relationships between these professionals and current or previous patients are deemed inappropriate and unprofessional.</p>
<p>In comparison, universities have a relatively relaxed stance on these types of relationships. The ethical standards applied to other professions are explicit that the power imbalance is one where free consent can’t be assumed on the part of the client/patient. It is up to the practitioner to make sure professional boundaries are maintained at all times. Seeking sexual partners among their clients/patients puts their professional registration and their ability to practice at risk.</p>
<p>What would happen if we applied the same standards to university staff? If it is accepted that the imbalance of power between staff and students compromises the capacity of a student to provide free consent for sexual activity, and sexual activity without free consent is harassment or assault (as defined <a href="https://aifs.gov.au/publications/sexual-assault-laws-australia">by law</a>), then the current framing of staff-student “consensual” relationships by Australian universities is inappropriate. It is also inconsistent with the sector’s stated aim to focus on the interests and needs of students. </p>
<p>Universities should consider adopting professional standards like those in the health care profession. Their stated aim is to prioritise the welfare of students and their entitlement to learn and undertake research in a safe, respectful environment. If we are really to “change the course”, we need to do more than address student sexual conduct. We need to raise the bar for professional and ethical standards for all who work in this sector as well.</p><img src="https://counter.theconversation.com/content/86623/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denise Cuthbert is currently the Convenor of the Australian Council of Graduate Research. </span></em></p><p class="fine-print"><em><span>Fiona Zammit is the Executive Officer of the Australian Council of Graduate Research.</span></em></p>The university sector has a relatively relaxed stance on staff-student relationships and should consider adopting standards like those for health professionals.Denise Cuthbert, Associate Deputy Vice Chancellor, Research Training and Development, RMIT UniversityFiona Zammit, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/851832017-10-11T19:14:13Z2017-10-11T19:14:13ZThree charts on: disability discrimination in the workplace<figure><img src="https://images.theconversation.com/files/189498/original/file-20171010-10864-1yj61lu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many workplaces do not make reasonable adjustments for disabled employees.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006">Only 53%</a> of Australians with disability are employed, compared to 83% of all working-age people. Australia ranks 21st out of 29 <a href="http://www.oecd-ilibrary.org/social-issues-migration-health/sickness-disability-and-work-breaking-the-barriers_9789264088856-en">OECD nations</a> when it comes to employment rates for people with a disability. </p>
<p>But looking at the <a href="https://www.humanrights.gov.au/publications/complaints">data</a> reveals an even darker story – complaints about disability discrimination are the largest category of discrimination reported to the Australian Human Rights Commission (AHRC), and the numbers have been steady for around 20 years. </p>
<p>Lower employment levels translate into Australians with disability living in poverty at the <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2011/December/Disability_employment_in_Australia_and_the_OECD">highest rates in the OECD</a>. </p>
<p>The Australian Bureau of Statistics <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006">also found</a> that the employment rates vary radically depending upon the “disability type”. Those who have a “psychological disability”, for example, have the lowest employment rate at 29%. </p>
<p>Employment also varies by “disability severity” (defined as mild, moderate, severe and profound). Employment decreases as severity increases. Only 26% of people with profound or severe physical disability are employed. </p>
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<p>As you can see in the chart above, complaints to the AHRC are categorised by the legislation they fall under – Disability Discrimination Act, Sex Discrimination Act, Racial Discrimination Act, Human Rights and Equal Opportunity Commission Act, and Age Discrimination Act.</p>
<p>Using this, we can see that disability discrimination has consistently represented the highest proportion of complaints, currently 37%. When you consider that the Racial Discrimination Act and the Sex Discrimination Act total 41% of cases combined, this gives some insight into the prevalence of workplace discrimination faced by people with disability.</p>
<p>The next chart shows the proportion of disability discrimination complaints that relate to the workplace. This is approximately 35% from the latest figures but has peaked at a much higher rate. </p>
<p>While we can’t explain the fluctuation, at various times there have been changes to the system, cuts in funding and political tensions. What can be interpreted from the figures is that disability discrimination has been sustained and ongoing over the two decades. </p>
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<p>In <a href="http://www.tandfonline.com/doi/full/10.1080/09687599.2016.1256807">our research</a>, using publicly available complaint case summaries, we found that employers incorrectly assumed that the costs of employing people with disability were higher than they are, or were unaware of government programs to offset the costs of reasonable adjustments in the workplace. In other cases, people were discriminated against by the strict adherence to guidelines and policies. </p>
<p>We found several distinctive themes in the disability complaints made. </p>
<p>For instance, many employers do not provide adequate access to the workplace. This could be as simple as tactile ground surfaces for people who are blind. Many cases also involved managers, or human resource procedures, being too quick to dismiss an employee who acquired a disability. Reasonable adjustments can often be made to the position descriptions. </p>
<p>Hiring practices were often biased and discounted the abilities of applicants (otherwise known as <a href="https://www.enei.org.uk/resources/reports/disability-a-research-study-on-unconscious-bias/">unconscious bias</a>). In many cases, workplaces were not inclusive of assistive technologies, such as screen reading software or hearing loops. These would have allowed employees with a disability to do their job. </p>
<p>Mental health complaints have doubled in prevalence over time suggesting the dynamic nature of disability discrimination and the willingness of those with <a href="https://theconversation.com/to-disclose-or-not-to-disclose-mental-health-issues-in-the-workplace-52980">mental health issues to disclose their disability</a> who previously may not have instigated a complaint case.</p>
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<p>In reading the summaries of the complaints to the AHRC, it is apparent that employers, co-workers and third-party organisations (e.g. insurance companies) directly or indirectly treat people unfairly, or, in the worst cases, display open hostility to Australians with a disability. </p>
<p>In doing so, those involved show a lack of understanding of the basic legal principles of the Disability Discrimination Act. These include sections covering <a href="http://www.humanrights.gov.au/federal-discrimination-law-chapter-5-disability-discrimination-act#5_2_2">direct discrimination</a>, <a href="http://www.humanrights.gov.au/federal-discrimination-law-chapter-5-disability-discrimination-act#5_2_3">indirect discrimination</a>, <a href="http://www.humanrights.gov.au/federal-discrimination-law-chapter-5-disability-discrimination-act#5_5">unjustifiable hardship</a>, <a href="http://www.humanrights.gov.au/federal-discrimination-law-chapter-5-disability-discrimination-act#5_3_1d">inherent requirements</a> and <a href="https://www.humanrightscommission.vic.gov.au/the-workplace/employer-responsibilities/reasonable-adjustments-in-employment">reasonable adjustments</a>. </p>
<h2>What can be done?</h2>
<p>Some may argue that Australians with severe levels of disability would be unable to work. But <a href="https://www.dss.gov.au/our-responsibilities/disability-and-carers/publications-articles/policy-research/shut-out-the-experience-of-people-with-disabilities-and-their-families-in-australia?HTML#2.4">their experiences</a> show that, with the correct assistive technology and attitudes that focus on ability rather than disability, employment is not just possible but imperative. </p>
<p>A recent <a href="http://www.keepeek.com/Digital-Asset-Management/oecd/employment/connecting-people-with-jobs-key-issues-for-raising-labour-market-participation-in-australia_9789264269637-en#.WdsmnGiCxhE#page81">OECD report</a> singled out Denmark and Switzerland for their targeted intervention for younger people with disability or medical conditions. This ensures they have the highest chances of being employed rather than becoming welfare-dependent.</p>
<p>The foundation of the <a href="https://www.ndis.gov.au/">National Disability Insurance Scheme</a> shows the government’s desire to give people with disability the opportunity to move from welfare to employment. While we wait for the major policy change to take effect, other immediate options are available to bring about positive social change. </p>
<p>Positive exposure in the media (see <a href="http://www.attitude.org.au/about-us/people/">Attitude Foundation</a>), personal contact and education could change attitudes to disability. The government and non-profit organisations have a multitude of resources available for businesses, to raise awareness about best practice and inclusive assistance. </p>
<p>One good resource is <a href="https://www.jobaccess.gov.au/">Job Access</a>. This government site provides education and resources to assist with workplace adjustment. It also provides direct assistance to people with disability. </p>
<p>Other organisations like the <a href="https://www.and.org.au/">Australian Network on Disability</a> can help businesses to become strategically more inclusive. In the end it will come down to employers giving every Australian job seeker with disability a fair go and not judging “<a href="https://www.humanrights.gov.au/news/speeches/speeches-dont-judge-what-i-can-do-what-you-think-i-cant">what I can do by what you think I can’t</a>”.</p><img src="https://counter.theconversation.com/content/85183/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Darcy receives funding from the Australian Research Council for the disability entrepreneurship Project working with Settlement Services Australia, National Disability Services and BreakThru People Solutions</span></em></p><p class="fine-print"><em><span>Tracy Taylor does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia has the highest poverty rate in the OECD for people with a disability. The barriers to, and discrimination in, the workplace are part of the reason.Simon Darcy, Professor of Social Inclusion - UTS Business School - Centres for Business and Social innovation, and Business Intelligence and Data Analytics, University of Technology SydneyTracy Taylor, Professor of Sport Management, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746192017-03-21T23:38:55Z2017-03-21T23:38:55ZProposed changes may confuse rather than clarify the meaning of Section 18C<figure><img src="https://images.theconversation.com/files/161737/original/image-20170321-9136-10hesgl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Turnbull government's objectives in seeking to change Section 18C are unclear.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Turnbull government <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">has announced</a> proposed changes to <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> of the Racial Discrimination Act: the law that makes it unlawful to engage in acts that are reasonably likely to “offend, insult, humiliate or intimidate” someone because of their race or ethnicity. </p>
<p>Under the proposals, the word “harass” will replace the words “offend, insult, humiliate”. A provision will also be included saying the test to be applied in deciding whether 18C has been breached is the objective standard of “the reasonable member of the Australian community”.</p>
<p>There are also proposed changes to the processes the Australian Human Rights Commission follows when someone lodges a complaint under 18C. For example, the commission will have to contact the people a complaint affects.</p>
<p>The changes to the commission’s processes are relatively uncontroversial; the commission supports many of them. They should also avoid a repeat of cases such as that involving <a href="http://www.abc.net.au/news/2016-11-04/18c-racial-vilification-case-facebook-qut-thrown-out/7996580">three Queensland University of Technology students</a>, who were not contacted until 14 months after the complaint was made.</p>
<p>However, the government’s objectives in seeking to change 18C are unclear. This may have the effect of confusing rather than clarifying what the law means.</p>
<h2>Why does the government want to change the wording?</h2>
<p>Much of the controversy surrounding 18C has focused on the words “offend” and “insult”. This is unsurprising: many people recognise these words are capable of applying to slights that should not be the concern of hate-speech laws. </p>
<p>Many also think that, in a democracy, there shouldn’t be a right not to be offended or insulted. The hate-speech laws of <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">most other democracies</a> don’t cover offensive and insulting acts.</p>
<p>The Federal Court has recognised the difficulties with 18C by <a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1007.html">interpreting</a> it that so it applies only to:</p>
<blockquote>
<p>… profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>18C’s legal meaning is therefore different from its ordinary meaning. </p>
<p>However, this is not always well understood, either by critics of 18C and possibly by some people who have brought complaints under the provision. Many <a href="https://theconversation.com/we-should-follow-other-countries-lead-on-hate-speech-by-changing-18c-70135">have argued</a> there is a case for amending 18C to bring the law’s ordinary meaning into line with the Federal Court’s interpretation.</p>
<p>Against this, there have been concerns that any changes to 18C could send a <a href="http://www.abc.net.au/news/2017-03-21/ethnic-communities-react-to-proposed-18c-changes/8374494">problematic message</a> to minority groups and give a <a href="http://www.smh.com.au/national/scrapping-bolt-laws-would-be-a-green-light-to-racists-neil-brown-20140220-332wf.html">green light</a> to people who want to engage in racist behaviour. There have also been concerns about unintended effects upon a settled body of Federal Court decisions. </p>
<p>Clearly, any change to 18C would have to be carefully managed to clarify its meaning while avoiding these negative outcomes.</p>
<p>In this light, the government has not adequately explained what it is hoping to achieve by changing the wording of 18C. For example, why remove the word “humiliate” when controversy has focused on the words “offend” and “insult”? Why has the word “harass” been chosen instead of other options, like “vilify” or “degrade”? </p>
<p>It is also unclear if the government is seeking to bring 18C in line with the Federal Court’s interpretation, or if the government’s view is that the Federal Court’s current approach makes it too easy for race-hate complaints to succeed under 18C.</p>
<p>Unless the government adequately explains what it is seeking to achieve by changing 18C’s wording, it is unlikely to win broad support for its proposals, which look likely to be <a href="https://theconversation.com/section-18c-change-appears-doomed-in-senate-74922">blocked by the Senate</a>. It is also unlikely to achieve its stated aims of making the law clearer and more effective.</p>
<h2>Who is the reasonable person?</h2>
<p>Under the Federal Court’s interpretation of 18C, an “objective”, rather than “subjective” test is applied in deciding whether it has been breached. </p>
<p>The question is not whether the person making the complaint was subjectively “insulted, offended, humiliated or intimidated”, but whether the act was <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonably likely</a> to have “profound and serious effects”.</p>
<p>In this regard, the Federal Court will often apply a “<a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1103">reasonable person</a>” test. This involves considering the conduct’s likely effect on a reasonable member of the racial or ethnic group that is the target of the alleged conduct.</p>
<p>The government’s proposal that the standard should be “the reasonable member of the Australian community” therefore clarifies that the test under 18C is objective as opposed to subjective. However, a crucial difference is that the reasonable person is no longer a member of the racial or ethnic group that has been targeted, but is instead a member of the broader Australian community.</p>
<p>The government has not adequately explained what it is seeking to achieve through this change. One possible concern is that “reasonable” Australians who are ignorant of what is likely to harass or intimidate minority groups should not inadvertently breach 18C. However, a clear danger of the new test is that a law meant to protect minorities will not adequately reflect their perspectives.</p>
<p>One way this problem could be avoided would be for the Human Rights Commission and the Federal Court to regard the “reasonable member of the Australian community” as sensitive to minority concerns. However, in the short term, the change is more likely to confuse rather than clarify 18C’s meaning.</p><img src="https://counter.theconversation.com/content/74619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Murray Wesson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government has not adequately explained what it is hoping to achieve by changing the wording of Section 18C.Murray Wesson, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/737922017-02-28T11:39:11Z2017-02-28T11:39:11ZParliamentary inquiry sidesteps making recommendation on 18C<p>Malcolm Turnbull had hoped that throwing the controversial Section 18C of the Racial Discrimination Act to a parliamentary inquiry would help resolve an issue that has become totemic for conservatives in the increasingly vitriolic culture wars.</p>
<p>As is his luck these days, it has done no such thing. The Joint Committee on Human Rights has provided <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Report">extensive and sensible advice</a> on how to improve the processes for dealing with complaints, including to weed out vexatious ones early. But on the core question of the section’s wording, it has tossed that very hot potato right back into the laps of Turnbull and his cabinet.</p>
<p>In a search for maximum consensus among its members the committee, after hearing extensive evidence for the status quo on the one hand and various changes on the other, has presented a “range of proposals that had the support of at least one member of the committee”.</p>
<p>No-one can say it’s not been comprehensive. But the list could have been written without the inquiry.</p>
<p>The current 18C outlaws actions “reasonably likely … to offend, insult, humiliate or intimidate” someone or a group of people, on the basis of race, colour or national or ethnic origin.</p>
<p>Section 18D provides exemptions and defences, including that of “good faith”, “public interest” and “fair comment”.</p>
<p>The options the committee has put are:</p>
<ul>
<li><p>no change in wording of 18C and 18D;</p></li>
<li><p>amending the act to ensure that the effect of it “is clear and accessible” by codifying the judicial interpretation. This would deal with the problem of the gap between what words like “offend” and “insult” mean in legal cases and their everyday meaning;</p></li>
<li><p>removing the words “offend”, “insult” and “humiliate” and replacing them with “harass”.</p></li>
<li><p>amending 18D to also include a “truth” defence similar to that of defamation law;</p></li>
<li><p>changing the objective test, from assessing the likely effect of the conduct on a “reasonable member of the relevant group” to “the reasonable member of the Australian community”; and</p></li>
<li><p>further investigating criminal provisions on incitement to racially motivated violence on the basis that existing state and federal laws have been ineffective.</p></li>
</ul>
<p>The 18C debate is a microcosm of the divisions within the present Liberal Party. Even Liberal members of the committee are split and, as the report was released, were arguing their separate cases in the media.</p>
<p>Committee chair Ian Goodenough, a Liberal from Western Australia, says his personal opinion is that the bar is too low – he would favour replacing “offend” and “insult” with “harass”, leaving “humiliate” and “intimidate” as is.</p>
<p>But fellow Liberal Julian Leeser, from New South Wales, argues the current wording is satisfactory and sufficient reform can be achieved by altering the processes.</p>
<p>Those conservatives – politicians and vocal sections of the media – who have their teeth into this issue will put strong pressure on Turnbull to rework the wording.</p>
<p>The Human Rights Commission and its outgoing president, Gillian Triggs, have become high-profile and symbolic targets for the conservatives; the case involving QUT students and the controversy over the Bill Leak cartoon gave them bountiful ammunition.</p>
<p>Cory Bernardi, who recently quit the Liberal Party, has a private member’s bill to which last year he signed up almost all Coalition senators. The bill, removing the words “insult” and “offend”, has gone to a committee and is expected to be debated this year.</p>
<p>Former Senate leader Eric Abetz reminded the government about the bill, saying he hoped it progressed changes to 18C and 18D “in line with the private senators bill, supported by all backbench senators, and with our values”.</p>
<p>The critics won’t be satisfied with just the better processes that have been recommended. This has been set up as a test of Turnbull’s credentials with the “base”.</p>
<p>Deputy Prime Minister and Nationals leader Barnaby Joyce injected a real-world reality check into the debate when he told Sky on Tuesday that in his recent travels in regional areas people hadn’t been raising 18C with him. </p>
<p>Conservative Victorian senator James Paterson acknowledged Joyce had a specific constituency but said he was “disappointed” to hear his comment. Apparently in circles in which Paterson (a member of the committee) moves there is a “very high community expectation that we address this issue”.</p>
<p>Turnbull originally did not want to touch 18C. Under pressure from the agitators, he became more amenable to overhaul – hence the inquiry.</p>
<p>But a glance through the summary of evidence to the committee shows this is another issue on which he can’t win, because feeling runs high on each side of the public debate. It’s also a dangerous issue in marginal seats with big ethnic votes.</p>
<p>Meanwhile Triggs’ term ends mid-year. The government will be searching for a replacement. Turnbull will not adopt Tony Abbott’s advice to scrap the commission. Whoever is chosen will have the task of overseeing not only significant changes to the processes for complaints under the Racial Discrimination Act but also, one would expect, to the commission more broadly. It will be an appointment closely watched.</p>
<iframe src="https://www.podbean.com/media/player/vtwdr-682691?from=yiiadmin" data-link="https://www.podbean.com/media/player/vtwdr-682691?from=yiiadmin" height="100" width="100%" frameborder="0" scrolling="no" data-name="pb-iframe-player"></iframe><img src="https://counter.theconversation.com/content/73792/count.gif" alt="The Conversation" width="1" height="1" />
Malcolm Turnbull had hoped that throwing the controversial Section 18C of the Racial Discrimination Act to a parliamentary inquiry would help resolve an issue that has become totemic for conservatives…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680702016-12-06T19:08:11Z2016-12-06T19:08:11ZAustralia’s human rights debate has always been political<figure><img src="https://images.theconversation.com/files/148802/original/image-20161206-25749-w2uzlj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human Rights Commission president Gillian Triggs</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>Human rights have been a hot topic of late. The <a href="https://www.humanrights.gov.au/">Australian Human Rights Commission</a> president, <a href="https://www.thesaturdaypaper.com.au/news/politics/2016/04/23/human-rights-commission-president-gillian-triggs-speaks-out/14613336003160">Gillian Triggs</a>, has been accused of politicising her position, while The Australian newspaper and conservative politicians have led a campaign against Section 18C of the Racial Discrimination Act.</p>
<p>Why has Australia’s long commitment to human rights bodies and legislation suddenly become such an issue? After all, the Human Rights Commission celebrates what amounts to its 35th anniversary this year, and Section 18C has been on the books for more than 20 years.</p>
<p>Answering these questions involves in part looking at Australia’s previous reception of human rights. Contrary to federal minister Christopher Pyne’s recent <a href="http://www.smh.com.au/federal-politics/political-news/stay-out-of-politics-and-stick-with-human-rights-christopher-pyne-admonishes-gillian-triggs-20161022-gs8hwl.html">suggestion</a> that Triggs “stay out of politics and stick with human rights”, Australia’s historic engagement with human rights norms has always been informed by the politics and prejudices of the day.</p>
<h2>Human rights in history</h2>
<p>Although Australia was one of eight nations that drafted the 1948 Universal Declaration of Human Rights, it was slow to embrace these principles domestically. </p>
<p>Commenting on the impending 15th anniversary of the declaration in 1963, one department of external affairs bureaucrat pronounced himself a “sceptic” about such commemoration. A “routine press release” would suffice, at least “while we have discriminatory racial laws in the states and a racial immigration policy”.</p>
<p>Talking up human rights, it was feared, might draw unwanted attention to Australia’s less-than-stellar record. Equally, the declaration lacked enforceable agreements to back up human rights. As the surprisingly forthright external affairs minister, Paul Hasluck, put it at a Human Rights Year gathering in 1968, it was a document “that a nation would not mind having quoted against itself”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=320&fit=crop&dpr=1 600w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=320&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=320&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=402&fit=crop&dpr=1 754w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=402&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/147114/original/image-20161123-19682-m8vwta.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=402&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A commemorative stamped envelope released by Australia Post to mark Human Rights Year, 1978.</span>
<span class="attribution"><span class="source">Supplied by author</span></span>
</figcaption>
</figure>
<p>This changed in the 1970s. The Whitlam government signed the twin covenants associated with the declaration in 1972, but was unable to make significant further progress. Only the Racial Discrimination Act passed before the government’s dismissal. In March 1976, enough nations had ratified the twin covenants to make them enforceable and, as such, a matter of urgency for the new Fraser government.</p>
<p>This was a time of global momentum in human rights. <a href="https://www.nobelprize.org/nobel_prizes/peace/laureates/1977/amnesty-facts.html">Amnesty International</a> received the Nobel Peace Prize in 1977 and US President Jimmy Carter began talking of their <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674724853">centrality</a> to a post-Vietnam foreign policy.</p>
<p>In 1978, the 30-year anniversary of the Universal Declaration of Human Rights, the Fraser government embarked on a large-scale commemorative project and proposed a human rights commission as a significant step towards Australia’s ratification of the covenants.</p>
<h2>Creating the commission</h2>
<p>The Whitlam government had proposed a human rights bill in 1973, which floundered in a debate about interference in state matters – particularly concerning Indigenous Australians. </p>
<p>From 1976 onward, the Fraser government took steps down a similar path, yet the bill’s failure to pass until 1981 highlighted the strength of debate. While everyone professed to support inalienable human rights, the definition was not at all certain, and they became a political football. </p>
<p>One of the biggest issues that slowed the bill’s passage was how to define the Universal Declaration of Human Rights’ “right to life”. A woman’s right to terminate a pregnancy – then and now subject to various restrictive state laws – was a big issue in Australia at the time. Anti-abortion groups sought to appropriate rights to their agenda.</p>
<p>In 1974, one Methodist minister <a href="http://nla.gov.au/nla.news-article110760798">remarked</a> that the proposed bill “allows a person to be deprived of their life if it be according to the law”. Such concerns were the main reason for the bill’s lengthy stay in parliament. </p>
<p>In 1980, an <a href="http://nla.gov.au/nla.news-article110584178">amendment</a> was made to the proposed bill to include “the rights of the unborn child”. While this appeased an anti-abortion majority in the lower house, it stalled in a hostile Senate. </p>
<p>This is just one example of the political scuffles that dogged the early operations of the commission. It was launched on December 10, 1981, and replaced in 1986 by the Human Rights and Equal Opportunity Commission. The topics of debate ranged from the rights of the family to socially constructed gender norms. Drawing distinctions between “politics” and “human rights” didn’t make sense then, and certainly doesn’t now.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=563&fit=crop&dpr=1 754w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=563&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/148799/original/image-20161206-25735-otfjoy.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=563&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Human Rights Commission workers informing the public at a Human Rights Day picnic in 1985.</span>
<span class="attribution"><span class="source">Federal Department of Information</span></span>
</figcaption>
</figure>
<h2>Words that wound</h2>
<p>The Racial Hatred Act inserted Section 18C into the Racial Discrimination Act. But its core principles had been the topic of fierce discussion for decades. </p>
<p>Conservative pressure had led to a similar provision being deleted from the original legislation in 1975. However, a late 1970s <a href="https://hatfulofhistory.wordpress.com/2015/11/28/forming-the-national-front-of-australia-asio-and-the-fledgling-far-right-group/">rise in hate groups and fascist violence</a> sparked renewed demands for laws to deal with “racist propaganda”. </p>
<p>The commission sponsored a conference titled “Words that Wound” in 1982, where a remarkable range of opinions echoed those of today. </p>
<p>Participants did not express a desire to trample freedom of speech, even at a time when 55% of Australians were polled as opposing a multicultural Australia. Instead, they wanted simply to control the flow of racist publications. These often encouraged violence and, as then commissioner Dame Roma Mitchell put it, were “perhaps the most hurtful barb” a minority group could receive. </p>
<p>The same issues that court conservative animosity today stirred passions among progressives in the 1980s. A representative of the Greek-Australian community forcefully defended “a right that is most precious to us – our freedom to express ourselves”. The chairman of the Association for Immigration Reform also cautioned that such laws could well be used against Indigenous activists campaigning for a treaty with white Australia. </p>
<p>Such concerns were also in the minds of those drafting the legislation. The result was that our current laws give ample protections for free speech, with only the most <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">egregious</a> cases prosecuted.</p>
<p>Equally, though, recent <a href="http://www.abc.net.au/news/2016-12-06/chinese-australians-racist-discrimination-asian-mandarin-vietnam/8092926">findings</a> that one-third of young Australians face racial discrimination raise questions over whether the Racial Discrimination Act’s topical treatments of racist outbursts is enough to deal with a broad, systemic problem.</p>
<p>Historicising both the Australian Human Rights Commission’s foundation and initial debates about legislative limitations on hate speech demonstrates that human rights have never been above politics. Equally, questions of freedom of expression were as much on the lips of past proponents of these laws as their contemporary detractors.</p><img src="https://counter.theconversation.com/content/68070/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jon Piccini does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Looking back at the Australian Human Rights Commission’s foundation shows that human rights have never been above politics.Jon Piccini, UQ Research Fellow, School of Historical and Philosophical Inquiry, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/683542016-11-15T02:33:55Z2016-11-15T02:33:55ZChange Section 18C? Critics should do this crash course first<p>The federal government has announced a <a href="https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Parliamentary-inquiry-into-freedom-of-speech.aspx">parliamentary inquiry</a> into free speech and section 18C of the Racial Discrimination Act.</p>
<p>So the time is right for a crash course on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">the law</a>, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">its exemptions</a>, and <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/">the powers of the Australian Human Rights Commission</a>. </p>
<p>Let’s start with the basics.</p>
<h2>Can the Australian Human Rights Commission sue a person under 18C?</h2>
<p>No. It couldn’t even if it wanted to.</p>
<p>The parliamentary inquiry was announced in the wake of the Prior v QUT <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">case</a>, in which the federal court <a href="https://www.theguardian.com/australia-news/2016/nov/04/qut-computer-lab-racial-discrimination-lawsuit-thrown-out">dismissed claims</a> brought under section 18C of the Racial Discrimination Act against three Queensland University of Technology (QUT) students. </p>
<p>In that case, an Indigenous QUT staff member Cindy Prior <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">alleged</a> that Facebook comments made by the students after they were ejected from a computer lab reserved for Indigenous students breached section 18C of the Racial Discrimination Act.</p>
<p>Following the decision, Prime Minister Malcolm Turnbull <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">told</a> the ABC that the Human Rights Commission:</p>
<blockquote>
<p>has done a great deal of harm to its credibility by bringing the case against the Queensland students.</p>
</blockquote>
<p>That may have left some people under the mistaken impression that the Commission sued the students. It did not, and could not. </p>
<p>The Commission has no power to litigate in relation to an alleged breach of section 18C or any other provision of the Racial Discrimination Act. Only a person alleging their own racial or ethnic group was vilified by statements made in public can commence court proceedings. </p>
<p>That is exactly what happened in the Prior v QUT case. After the Commission terminated Prior’s complaint in August 2015, having decided there was no reasonable prospect of the complaint being successfully conciliated, Cindy Prior exercised her right to commence court proceedings. Her claim was summarily dismissed in relation to three of the named respondents. Proceedings continue for others.</p>
<p>The Commission has been at pains to point out that they did not “bring the case” to court, saying that:</p>
<blockquote>
<p>At no stage does the Commission initiate or prosecute a complaint. </p>
</blockquote>
<p>In the QUT case, <a href="http://www.theaustralian.com.au/higher-education/qut-race-case-the-punishment-is-the-process-says-alex-wood/news-story/af1c3975a427d1a6d04619347c5d6dbe">the Commission was criticised</a> for not communicating with all of the students involved, taking too long to attempt to address the original complaint, and not terminating the complaint earlier. These criticisms should be assessed on their merits and, as appropriate, lessons learned.</p>
<h2>Is the bar “set too low”?</h2>
<p>Not according to the courts. </p>
<p><a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-says-human-rights-commission-has-damaged-its-reputation-over-18c-and-must-reform-20161106-gsjc2i.html">Critics</a> of 18C have <a href="https://www.google.com.au/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=qut%20bar%20set%20too%20low">suggested</a> the “bar is set too low” because section 18C uses the phrase “offend, insult, humiliate or intimidate” to define the threshold for unlawful racial vilification. </p>
<p>In the Prior v QUT case, Judge Jarrett <a href="https://castancentre.files.wordpress.com/2016/11/prior-v-qut.pdf">found</a> that the Facebook comments of two of the respondents did not meet the legislative threshold and therefore were not unlawful. (In the case of the third respondent, the judge found that it could not be proven that the student had been responsible for the allegedly vilifying Facebook comment.) </p>
<p>In stark contrast to the <a href="http://www.theaustralian.com.au/opinion/columnists/grace-collier/no-offence-intended-modern-rights-mean-fewer-rights-for-majority/news-story/d3e71cddd43cfa433d54aaff1cd514bb">regular attempts by some opponents</a> to generate hostility towards section 18C by saying it covers any offence, the courts have consistently ruled that the bar is not low.</p>
<p>Previous <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1007.html">judgments</a> have clarified that breaching 18C requires conduct with</p>
<blockquote>
<p>profound and serious effects, not to be likened to mere slights. </p>
</blockquote>
<p>So the QUT decision confirms that the legislature and judiciary have made a fair assessment of where the line should be drawn.</p>
<p>It’s also important to remember that <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">section 18D</a> of the Act details exemptions to 18C, which covers anything said or done as part of an artistic work or “any other genuine purpose in the public interest”.</p>
<h2>Has 18C always been a big issue?</h2>
<p>Not really. </p>
<p>Section 18C <a href="http://www.austlii.edu.au/au/legis/cth/num_act/rha1995109/">was introduced in 1995</a> recognising that racial vilification is a problem that could and should be tackled. </p>
<p>It has operated without much attention or fuss for over two decades. It is not a panacea, but it <a href="http://www.austlii.edu.au/au/journals/UNSWLawJl/2016/18.html">has supported legal redress</a> in a modest number of instances where individuals and communities have been subjected to racist abuse that none of us should have to endure.</p>
<p>Of the hundreds of instances of alleged racial vilification over the years, only three have been regarded as sufficiently noteworthy to attract significant media attention and public comment.</p>
<p>One in 2011 involved journalist Andrew Bolt, who was <a href="http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918">found</a> in the Federal Court to have breached the Act. Then there was the QUT case. The third, which centred on a cartoon by Bill Leak, was recently <a href="http://www.abc.net.au/news/2016-11-12/eric-abetz-welcomes-bill-leak-cartoon-complaint-withdrawal/8020420">before the Commission and then subsequently withdrawn</a>. </p>
<p>Is there any other area of the law in which three controversial decisions in over 20 years would be regarded as a reason for a parliamentary inquiry? </p>
<p>Or where one instance of summary dismissal is regarded as proof of a fatal flaw? What is it about laws designed to address the harm caused by racist speech that makes some people so agitated?</p>
<p>Over the last 25 years only 1.8% of racial vilification complaints nationally <a href="https://theconversation.com/explainer-how-do-australias-laws-on-hate-speech-work-in-practice-26105">have ended up in a court or tribunal for adjudication</a>. Court cases are the exception, not the rule.</p>
<p>The conciliation process overseen by the Australian Human Rights Commission (and equivalent bodies in the states and territories) is confidential. This means the public rarely hears about the typical cases in which a racial vilification complaint is resolved. </p>
<p>This reflects a decision taken many decades ago that, in the area of anti-discrimination, mediation-based dispute resolution processes are preferable to protracted, expensive litigation in courts. Thousands of complainants and respondents would agree.</p>
<h2>A strong symbolic message</h2>
<p>Section 18C is no more or less flawed than many other laws. Because it is limited to matters of substantial public harm, it cannot be used to complain about having one’s feelings hurt. </p>
<p>Critics have called for the words “insult” and “offend” to be removed from section 18C. But this would likely have no legal effect; remember, previous judgements have said that conduct must have “profound and serious effects” before one can say 18C has been breached.</p>
<p>However, removing these words would send a troubling symbolic message to the communities that section 18C is supposed to protect: that the government feels they should bear the burden of more harm so that others can have free speech. Could there be a more wrong message to send at this time in our history?</p><img src="https://counter.theconversation.com/content/68354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katharine Gelber has received funding from the Australian Research Council and the Academy of Social Sciences Australia.</span></em></p><p class="fine-print"><em><span>Luke McNamara has received funding from the Australian Research Council.</span></em></p>The time is right for a crash course on section 18C of the Racial Discrimination Act, its exemptions and the powers of the Australian Human Rights Commission.Katharine Gelber, Professor of Politics and Public Policy, The University of QueenslandLuke McNamara, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/541662016-03-14T01:42:01Z2016-03-14T01:42:01ZNot so grassroots: how the snowflake model is transforming political campaigns<figure><img src="https://images.theconversation.com/files/112639/original/image-20160223-16451-2zpshp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Campaign for Nuclear Disarmament's London to Aldermaston march, 1958: an early example of mass political mobilisation to achieve a specific goal.</span> <span class="attribution"><a class="source" href="http://www.cnduk.org/about/item/437">CND</a></span></figcaption></figure><p><em>This article is part of the <a href="https://theconversation.com/au/topics/democracy-futures">Democracy Futures</a> series, a <a href="http://sydneydemocracynetwork.org/democracy-futures/">joint global initiative</a> with the <a href="http://sydneydemocracynetwork.org/">Sydney Democracy Network</a>. The project aims to stimulate fresh thinking about the many challenges facing democracies in the 21st century.</em></p>
<hr>
<p>Consider these five vignettes of contemporary politics in Australia:</p>
<ul>
<li><p><a href="http://www.greenpeace.org/australia/en/what-we-do/climate/Save-the-Reef/">environmental activists</a> start an online petition against a coal mine near the Great Barrier Reef;</p></li>
<li><p><a href="http://www.australianunions.org.au/saveourweekend_petition">trade unionists</a> organise against changes to weekend penalty rates;</p></li>
<li><p>a <a href="http://www.nab.com.au/about-us/corporate-responsibility/our-programs-and-initiatives/social-and-financial-inclusion">bank</a> promotes access to financial services for marginalised individuals;</p></li>
<li><p>volunteers knock on doors to promote their <a href="http://thisislabor.org">political party</a>; and</p></li>
<li><p>community groups work with a <a href="https://www.humanrights.gov.au/news/stories/finalists-announced-racism-it-stops-me-award-2015">government authority</a> to prevent racism.</p></li>
</ul>
<p>These diverse projects – undertaken by widely different groups, promoting different ends, in different locations – are all variations on an increasingly common mode of collective political action: they are all campaigns.</p>
<p>Long part of the repertoire of political parties, campaigning has broken out from the electoral context and <a href="http://trove.nla.gov.au/work/19369403">evolved into</a> a new tool for business, government and civil society actors.</p>
<p>Campaigning is now the dominant form of collective political activity in Australia. Waves of transformative technological change continue to morph campaigning into an intensely mediated activity. Dispersed individuals and locations are linked through television, the web, social media networks and most recently <a href="http://www.zdnet.com/article/you-better-watch-out-big-data-and-presidential-politics/">big data</a>.</p>
<p>Scholars have somewhat overlooked this transformation and its significance for politics and democracy. In particular its powerful internal tensions deserve closer attention. The campaign model is inherently divided between co-existing yet contradictory characteristics: bottom-up participation and top-down direction. </p>
<p>In this topsy-turvy form of politics, what looks to be grassroots-driven may on closer inspection be revealed as organised, coordinated and managed from the centre.</p>
<h2>The origins of the campaign</h2>
<p>It’s instructive to consider the etymology of this very political word. <em>Campagna</em> is Italian for field, plain or open country. The military recruited the word in the 17th century to denote the time an army spent in the field. So, campaigns were finite periods of intense fieldwork as armies mobilised in spring, fought in summer and stood down in winter.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/111904/original/image-20160218-1240-rzlgs2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The first campaigns involved mobilised armies.</span>
<span class="attribution"><span class="source">ResoluteSupportMedia/flickr</span></span>
</figcaption>
</figure>
<p>In 19th-century America, the word was given civilian clothing and put to work in elections and commercial advertising, though it retained the sense of short-run mobilisation. With the Campaign for Nuclear Disarmament in 1958, the word began to denote a mass political mobilisation to achieve a specific goal.</p>
<p>A campaign is not a rally, protest, grievance or open-ended social movement. A campaign is a series, a finite short-run sequence, of activities.</p>
<p>Importantly, it is designed. A campaign is directed and managed rationally and strategically; it is not spontaneous, random or incidental. And it wants a particular result – not a generally improved state of affairs, but an identified and targeted outcome, an achievable end-point.</p>
<p>If a campaign is designed, the campaign manager is the designer, the strategist, the planner, the orchestrator of the activities that constitute the campaign. The campaign manager may not be visible or overt, but a campaign cannot function without a campaign manager.</p>
<h2>Language talks up grassroots role</h2>
<p>This observation sits uncomfortably with the strongly normative, almost emancipatory, language often used to describe campaigns. This typically involves words of participation and empowerment; words that celebrate individual efficacy and civic engagement; words that privilege the grassroots, with their authentic local knowledge, over the centre, the home of bosses and business as usual.</p>
<p>For example, <a href="https://www.facebook.com/greenpeaceusa/videos/10152907412764684/">Greenpeace declares</a>:</p>
<blockquote>
<p>Isn’t it amazing what we can do together? The driving force behind Greenpeace is a community of people like you – people who speak out and take action to make the world a better place. … Thank you for your courage. We are so proud to stand with you in this fight.</p>
</blockquote>
<p>The Australian Human Rights Commission, discussing its anti-racism campaign, tends to <a href="https://itstopswithme.humanrights.gov.au/about-campaign">agree</a>:</p>
<blockquote>
<p>It’s often the people working on the ground within local communities or specific environments who have the best understanding of the issues and ideas of how to overcome them.</p>
</blockquote>
<p>The Australian Labor Party, too, is increasingly using the language of empowerment as it develops its Obama-style campaigning skills. In the last federal election, campaign manager George Wright produced a <a href="https://www.youtube.com/watch?v=044ziCWXYEE">YouTube video</a> that declared – too optimistically as it turned out – that:</p>
<blockquote>
<p>… the only thing standing between Tony Abbott and the Lodge is you, me, Kevin and thousands of supporters across the country.</p>
</blockquote>
<p>Identifying the campaign targets (marginal seats and campaign donations), Wright called on “thousands of Australians to donate and … to volunteer”.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/044ziCWXYEE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Labor’s plan to win is to get you involved.</span></figcaption>
</figure>
<p>By the end of the campaign, Wright claimed Labor’s campaign had recruited 5000 “tele-campaigners” (call centre staff) and registered another 10,000 volunteers – more than could be used. The campaign made 1.2 million phone calls, conducted 250,000 “registered volunteer doorknocks”, sent out 3.5 million emails and raised $800,000 from online donations – a potential game changer for cash-strapped parties.</p>
<p>After the election, Wright <a href="http://www.blackincbooks.com/books/professionals">claimed</a> this “new approach to campaigning” was:</p>
<blockquote>
<p>… pushing political power into the hands of the people who stand to lose or gain from the outcomes of elections … and reforming the party from the grassroots up.</p>
</blockquote>
<h2>Who really drives the campaign?</h2>
<p>But does contemporary campaign practice justify such claims? Is campaigning a celebration of individual empowerment, of democratisation, of dispersal of organisational power? Is it so “amazing”? </p>
<p>Or is there a less obvious, but nonetheless critical and even dominant role, for the centre? What can we learn from campaigning about the relationship between the grassroots and the centre – between campaign volunteer and campaign manager? Who controls the resources? Who makes the decisions?</p>
<p>Consider Labor’s campaign for the Melbourne seat of Carrum in the 2014 Victorian state election.</p>
<p>Carrum was a classic marginal. To wrest the seat from the incumbent Liberal MP, Donna Bauer, Labor hired a modest flat in the back streets of Seaford. The living room was converted into a call centre, equipped with computer screens linked to a database of voter statistics. It was filled with the buzz of volunteers making calls on behalf of their candidate, Sonya Kilkenny.</p>
<p>Other operatives in the flat directed fieldwork – which, harking back to the military origins of campaign, describes the coordination of doorknocking. Teams of volunteers were sent out from the flat with maps and clipboards, again using the database to reach out to voters identified as persuadable.</p>
<p>All of this is volunteer work, under the banner of the “<a href="http://thisislabor.org/">Community Action Network</a>”. But their work is far from spontaneous, random or even self-directed. It is structured, planned, scripted, targeted and managed from the centre.</p>
<p>Volunteers, whether talking to voters on their doorstep or over the phone, or at train stations and supermarket carparks, are trained in what to say and how to say it.</p>
<p>Computer-assisted phone callers are guided through their conversations by scripts: first, tell them your own story, what values motivated you to volunteer; listen for a connection between your own narrative and values and those of the voter; then turn the conversation to talk about the candidates’ values, achievements and plans; and finally draw a contrast between your candidate and the opposition. </p>
<p>Don’t talk party or politics or policy. Instead, make it meaningful in terms of how voting Labor will benefit the voter and the voter’s family.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=177&fit=crop&dpr=1 600w, https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=177&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=177&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=223&fit=crop&dpr=1 754w, https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=223&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/111889/original/image-20160218-1269-1q9ww68.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=223&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Labor’s Community Action Network claims to be a grassroots movement of more than 5000 activists in Victoria.</span>
<span class="attribution"><span class="source">This is Labor</span></span>
</figcaption>
</figure>
<h2>Each snowflake has a centre</h2>
<p>The campaign in Carrum – which succeeded in getting Kilkenny elected – has been matched by similar volunteer networks in Labor’s NSW and Queensland branches, as well as in the union movement. </p>
<p>They are all, ultimately, modelled on the successful Obama campaigns, themselves derived from older traditions of <a href="http://insidestory.org.au/rules-for-radicals-comes-to-carrum">community organising</a>, but turbo-charged by Big Data, as <a href="http://www.thevictorylab.com/">described by American journalist Sasha Issenberg</a>.</p>
<p>Obama <a href="https://my.barackobama.com/page/content/snowflake/">campaign literature</a> uses the metaphor of the <a href="http://www.cstreet.ca/organizing_snowflake_model_campaigns_in_nationbuilder">snowflake to describe the campaign structure</a>. Like a snowflake, it has a strong centre occupied by a campaign organiser. Around the organiser are the snowflake’s limbs, staffed by “team leaders” or “captains”. Each is responsible for recruiting and directing volunteers in a campaign task – fieldwork, phone banking, data management and so on.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/111902/original/image-20160218-1276-1szg52.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Like a snowflake, every campaign is beautifully orchestrated.</span>
<span class="attribution"><span class="source">yellow cloud/flickr</span></span>
</figcaption>
</figure>
<p>The snowflake structure encourages accountability and results, and is designed for organic growth and replication. Making it work – maintaining the enthusiasm of volunteers and avoiding burnout and micro-management by captains – requires organisational commitment to training, development and the sharing of purpose. </p>
<p>But ultimately this is an effort by the centre to recruit, coordinate and control the periphery.</p>
<h2>So what are we to make of this?</h2>
<p>On one hand, political parties are supposed to be dying, or surviving as hollowed-out shells. Members have been leaving in droves; branches are closing; partisan attachments are withering; political efficacy – the sense that “I can make a difference” – is declining around the world.</p>
<p>The whole electoral contest is seen as an increasingly irrelevant exercise in spin and manipulation. Academic research, media commentary and internal reviews within the parties themselves all support this <a href="http://ppq.sagepub.com/content/20/2/205.full.pdf+html">dominant view</a>.</p>
<p>But if parties are dying, no-one told the volunteers in Carrum. If branch membership has been rendered meaningless, perhaps it was appropriate to repurpose the role into volunteer tele-campaigners. </p>
<p>Also, if parties’ reliance on large corporate donors and/or taxpayer generosity is problematic, the emergence of a new source of funding via social media is surely no bad thing.</p>
<p>On the other hand, perhaps the online campaign model provides a sense of efficacy that is illusory, even delusional. Can signing a petition make any difference to the real decision-making over, say, petroleum exploration on the Great Barrier Reef? Is scripted phone persuasion really the best way to communicate with our fellow citizens? </p>
<p>Are those who join an anti-racism campaign already more likely to embrace the cause than the <a href="https://www.humanrights.gov.au/news/opinions/vilification-adam-goodes-damages-everyone">actual racists</a>?</p>
<p>Certainly, all the essential elements of the contemporary campaign model – the centralised direction and co-ordination, the managerial delegation, the training and scripting, the capital-intensive nature of the resource base – seem at odds with, and serve as an necessary antidote to, the emancipatory language usually associated with such campaigns.</p><img src="https://counter.theconversation.com/content/54166/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Mills does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Political campaigns today are presented as products of bottom-up participation, not top-down direction. But even if a campaign appears grassroots-driven, it’s likely to be run from the centre.Stephen Mills, Lecturer, Graduate School of Government, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547292016-02-15T05:04:35Z2016-02-15T05:04:35ZDo we need a new human rights commissioner? Yes, but it’s complicated …<figure><img src="https://images.theconversation.com/files/111446/original/image-20160215-22566-9zj45b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tim Wilson has announced he is stepping down as human rights commissioner to contest the Liberal preselection for Goldstein.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Tim Wilson has <a href="http://www.theguardian.com/australia-news/2016/feb/15/tim-wilson-resigns-to-seek-liberal-preselection-for-seat-of-goldstein">announced</a> his resignation as human rights commissioner to seek Liberal Party preselection for the federal seat of <a href="http://www.aec.gov.au/profiles/vic/goldstein.htm">Goldstein</a>. Wilson <a href="http://www.smh.com.au/federal-politics/political-news/tim-wilson-appointment-to-human-rights-commission-stirs-controversy-20131217-2zjbk.html">resigned from the party</a> in 2013 to work at the Australian Human Rights Commission and is now heading back into the political fold. </p>
<p>So the question now is: does Australia still need a human rights commissioner? If so, should an incoming commissioner have the same “freedom” mandate as Wilson?</p>
<p>First, a little historical context. The role is provided for in the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s8b.html">Australian Human Rights Commission Act</a>, and Brian Burdekin was appointed to it upon the commission’s establishment in 1986. Next came more human rights luminaries – Chris Sidoti, Sev Ozdowski and Graeme Innes – who each simultaneously held the role of disability discrimination commissioner. </p>
<p>In the years leading up to Wilson’s appointment, from 2009-2012, the commission president, Catherine Branson, held the title, but the role was widely <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">considered to be redundant</a>.</p>
<p>It therefore came as a surprise when the new Coalition government appointed a full-time human rights commissioner in 2013, especially as it was Wilson, who was a director of an organisation committed to the commission’s abolition – the Institute of Public Affairs. </p>
<p>Attorney-General George Brandis <a href="http://www.smh.com.au/federal-politics/political-news/tim-wilson-appointment-to-human-rights-commission-stirs-controversy-20131217-2zjbk.html">declared</a> the government’s intention was to “help restore balance” to the commission’s work, which had become “increasingly narrow and selective in its view of human rights”. Much can be said – and <a href="http://www.abc.net.au/news/2013-12-19/joseph-tim-wilson-human-rights-commission/5166506">indeed has been</a> – about the appropriateness of this move, but that is now water under the bridge.</p>
<p>The commission does focus on anti-discrimination work. This makes sense, since federal legislation provides strong <a href="https://www.humanrights.gov.au/employers/good-practice-good-business-factsheets/quick-guide-australian-discrimination-laws">protection against discrimination</a> on several grounds (race, sex, disability and age), but eschews specific protection for most other human rights due to the lack of a human rights act. </p>
<p>The commission has <a href="https://www.humanrights.gov.au/our-work/commission-general/publications/strategic-plan-2014-2018">limited resources</a>, and allocating them primarily to work underpinned by the “big stick” of legislation makes sense. Discrimination remains one of the most prominent human rights issues facing Australian society, a fact underlined by Wilson’s own <a href="http://www.smh.com.au/federal-politics/political-news/human-rights-commissioner-tim-wilson-calls-for-end-to-statesanctioned-discrimination-on-marriage-20150609-ghk3d0.html">LGBTI</a> and <a href="http://www.smh.com.au/federal-politics/political-news/native-land-rights-should-be-overhauled-human-rights-commissioner-tim-wilson-says-20150218-13id4u.html">Indigenous</a> rights work. </p>
<p>When Wilson was appointed, his brief, according to Brandis, was to champion freedom of expression and other “traditional liberal rights” which the government believed were being neglected. Incidentally, Brandis also asked the Australian Law Reform Commission to look into legislation that encroaches on these “traditional” rights and freedoms, and it <a href="http://www.alrc.gov.au/publications/alrc127">found a great many</a>. Its final report is due to be tabled this month.</p>
<p>That Wilson was to focus only on “negative” freedoms (which generally involve government restraint) rather than also covering “positive” rights (which require the government to act) was a troubling aspect of his appointment from an <a href="http://www.abc.net.au/news/2013-12-19/joseph-tim-wilson-human-rights-commission/5166506">international law point of view</a>. </p>
<p>Nevertheless, the renewed focus on rights and freedoms other than non-discrimination was welcome, since it highlighted the fact that they do not enjoy strong legal protection in Australia. For example, there are only two jurisdictions (the <a href="http://www.austlii.edu.au/au/legis/act/consol_act/hra2004148/s16.html">ACT</a> and <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cohrara2006433/">Victoria</a>) where a person is legally protected against a breach of their right to freedom of expression, along with a host of other civil and political rights.</p>
<p>We have many more laws <a href="http://www.alrc.gov.au/publications/laws-interfere-freedom-association">limiting freedom of association</a> (which Wilson also <a href="http://www.smh.com.au/federal-politics/political-news/new-human-rights-commissioner-tim-wilson-calls-for-bikie-laws-repeal-20140108-30hmb.html">promoted</a>) than <a href="http://example.com/">protecting it</a>. It’s a great reminder that a proper human rights act would make the commissioner’s work more effective.</p>
<p>Despite the benefits it may have brought, Wilson’s appointment came at a great cost to the commission, which has had its funding <a href="https://www.ag.gov.au/Publications/Budgets/Budget2015-16/Documents/Portfolio-budget-statements/11-2015-16-PBS-AHRC.pdf">reduced significantly</a>. Innes, who served as an extremely effective disability discrimination commissioner from 2005 to 2014, saw his former role merged with the age discrimination commissioner’s to save a <a href="http://www.smh.com.au/federal-politics/political-news/appointment-of-human-rights-commissioner-has-come-at-a-cost-labor-20140515-zrdlc.html">claimed A$1.7 million</a>. The role of sex discrimination commissioner had gone unfilled for many months; an <a href="http://www.abc.net.au/news/2016-02-11/kate-jenkins-named-new-sex-discrimination-commissioner/7160828">announcement</a> was made last week that Kate Jenkins will start in April. </p>
<p>The political nature of Wilson’s appointment was not an isolated act. The government also placed unprecedented pressure <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">on Innes</a> and on the commission president, <a href="http://www.smh.com.au/federal-politics/political-news/row-involving-human-rights-commission-president-gillian-triggs-puts-careers-on-the-line-20150226-13qdog.html">Gillian Triggs</a>.</p>
<p>In the wake of Wilson’s resignation, the opposition has <a href="http://www.theguardian.com/australia-news/2016/feb/15/tim-wilson-resigns-to-seek-liberal-preselection-for-seat-of-goldstein">called for</a> the position of disability commissioner to be reinstated properly in the place of a new human rights commissioner. </p>
<p>So what should happen from here?</p>
<ul>
<li><p>Both Innes and Wilson should be replaced on a full-time basis, with appropriate funding;</p></li>
<li><p>As the Castan Centre noted in a media release welcoming Jenkins’ appointment, the process of appointments to the commission should be made transparent and put at arm’s length from the executive in the spirit of the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfNationalInstitutions.aspx">Paris Principles relating to the Status of National Human Rights Institutions</a>;</p></li>
<li><p>Overall funding for the commission should be increased to enable it to champion a wide range of human rights and freedoms adequately. Its funding should also be “ring-fenced” – that is, guaranteed so that (quoting the Paris Principles) the commission will “not be subject to financial control which might affect its independence”.</p></li>
</ul>
<p>In a media release, Brandis lauded Wilson for “single-handedly reshaping the human rights debate in Australia” and “restoring balance to a debate which had previously been dominated by the priorities and prejudices of the left”. </p>
<p>Putting aside the many problems with this statement due to space constraints, an <a href="http://www.theguardian.com/commentisfree/2015/feb/27/ruddock-asked-me-to-do-my-job-without-fear-or-favour-brandis-ended-that-tradition">article by Innes</a> last February paints a very different picture of Brandis and Wilson’s effect on the commission. </p>
<p>Previous attorneys-general, while still defending their governments’ actions, acknowledged the commission’s job is sometimes to give government a “kicking” without fear or favour. The present government seems to believe it is above such treatment and has <a href="http://www.abc.net.au/news/2015-02-28/gillian-triggs-burdekin-says-abbott-brandis-made-political-error/6270658">treated the commission badly</a>. It is not too late, under the new leadership, to make up for this.</p><img src="https://counter.theconversation.com/content/54729/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Adam Fletcher is a Research Fellow at Monash University's Castan Centre for Human Rights Law.</span></em></p>The next human rights commissioner needs to be appointed at arm’s length from government and with the ability to criticise government where required.Adam Fletcher, Research Fellow, Lecturer & PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/546382016-02-11T23:38:48Z2016-02-11T23:38:48ZWhat should the new sex discrimination commissioner do? Make ‘women’s issues’ everyone’s issues<figure><img src="https://images.theconversation.com/files/111244/original/image-20160211-29180-107zgjw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Newly appointed federal Sex Discrimination Commissioner Kate Jenkins with Attorney-General George Brandis.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Kate Jenkins’ involvement in this week’s <a href="https://www.outix.net/tickets/event/SchoolsOutForMidsumma">Schools Out for Midsumma</a> – an event supporting LGBTI young people – makes me feel happily hopeful about her <a href="http://www.smh.com.au/federal-politics/political-news/kate-jenkins-named-australias-new-sex-discrimination-commissioner-20160211-gmrhe1.html">new appointment</a> as Australia’s sex discrimination commissioner. </p>
<p>Yes, I’m sure she’s done oodles of other important things, but I particularly like that in a world where our federal government treats the LGTBI population like second-class citizens, Jenkins was able to deliver institutional support in her previous role as Victoria’s equal opportunity and human rights commissioner. That’s important, that’s good optics and that’s progressive.</p>
<p>Rather than writing a hagiography here – not my style and only hours in, it’s all a bit premature – I’m interested in the issue of a policy agenda. About what I’d push to the top of her to-do list once she’s settled in. </p>
<p>Sure, LGBTI issues interest me greatly. Ditto violence against women. Pay equity. Women on boards. In politics. But let’s not overlook that these issues are <a href="https://www.humanrights.gov.au/sex-discrimination">already on the commision’s agenda</a>, and that good works have already been done in these areas by the previous sex discrimination commissioner, <a href="http://www.annesummers.com.au/conversations/sex-discrimination-commissioner-elizabeth-broderick/">Elizabeth Broderick</a>.</p>
<p>Today, my hope lies in the mainstream. That gender equality can become <em>everyone’s</em> interest and <em>everyone’s</em> obligation.</p>
<p>Achieving equality in a developed and supposedly fair-go country like Australia is difficult. First, there’s not universal agreement – not among women and certainly not among men – that there’s anything awry here. Second, there remain vocal detractors – occupying positions of influence – who are keen to catastrophise about all the social ills that will befall us if power gets distributed more fairly.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"695766806070317056"}"></div></p>
<p>For equality to be achieved, there first needs to be a <em>mainstream</em> acknowledgement of the problem. This acknowledgement can’t just come from the go-to feminist commentators or special interest groups with very full barrows to push, but has to come from our political institutions and, ultimately has to come from men.</p>
<p>Men.</p>
<p>The degree to which men should be speaking about gender, about discrimination, about violence, is a hot topic. Just ask David Morrison. </p>
<p>There is, however, a limit to the successes feminism can have if the issue of equality continues to be framed as just a women’s issue, and one that only women can and should be passionate about. </p>
<p>Like it or not, men are making the lion’s share of the decisions in this country. Be they in the federal parliament, or in corporations, they’re sitting on a disproportionate number of thrones here.</p>
<p>For equality to happen, those with the power need to give up a little of it. And this seemingly simple idea is at the heart of most equity stoushes. </p>
<p>So in acknowledging that there exists some institutional problems in this country, rather than just holding our breath and wishing things would hurry the hell up and change already, the men within these institutions need to be encouraged to take a leadership-for-equality role.</p>
<p>I’m not saying anything new here, of course: the desperate need for men to care about gender equality as much as (some) women do beyond just a lip-service, “nice guy” kind of way is well established. Their interest, their empathy however, needs to translate into advocacy, into change, in capitulation.</p>
<p>If Jenkins can make in-roads into getting gender discrimination viewed as a social issue – in the broadest sense – and not marginalised as a women’s-only, or feminist concern, hey, maybe I’ll get a step closer to writing that hagiography.</p><img src="https://counter.theconversation.com/content/54638/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lauren Rosewarne does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It will be difficult to make headway on gender equality while it is framed as “women’s issues” and no everyone’s problem. The answer? Bring men on board.Lauren Rosewarne, Senior Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506622015-12-14T19:27:59Z2015-12-14T19:27:59ZWe all have a role in protecting democracy’s unwritten rules<p>Australians might well be taken aback to discover how feebly many of the processes that constitute a robust democratic system are formally protected in this country. What safeguards them are conventions or informal norms rather than constitutional provisions or laws. </p>
<p>This means we can’t rely on institutions coming in on our behalf and imposing sanctions when conventions are broken. We have to trust the robustness of our political culture; we must trust that citizens and people in office will insist democratic conventions are observed and that those who flaunt them pay a reputational, professional or electoral price. </p>
<p>One such basic democratic convention is respect for the separation of powers. This traditionally refers to the executive, the parliament and the judiciary. Another is respect for the independence of statutory officers, such as ombudsmen and human rights commissioners.</p>
<h2>In the beginning</h2>
<p>To appreciate why respecting the independent operation of these different arms of democratic government is so important, let’s take a look at one of the classic texts on modern democratic government, the <a href="http://www.foundingfathers.info/federalistpapers/fedindex.htm">Federalist Papers</a>, written by the founders of the US political system. </p>
<p>Having an all-too-rare and precious opportunity to actually construct a political system embodying the principles they held dear, the federalists identified institutional designs to realise freedom and equality.</p>
<p>They decided to allocate different types of powers to different branches of government. This did this to ensure one part of government – or one small group – couldn’t gain a monopoly over political power. The move had the added advantage of creating parallel lines of review or appeal, so that no one office would hold the trump card. </p>
<p>Democratic political systems establish statutory authorities for a similar reason. It’s a way of ensuring that other parts of government administer laws and carry out their duties in a way that respects higher-order principles, such as freedom of information, non-corruption and fundamental human rights. </p>
<h2>Tethered camels</h2>
<p>Even though our political representatives are mandated to represent our interests and respect the law, we put these statutory officers in place because we understand there’s always a risk that expediency, bias or self-interest may prevent politicians observing their duties. Trust in Allah, as the Sufi saying goes, but tether your camel. </p>
<p>But unlike the judiciary, whose lines of authority are formally separated from those of the legislature, statutory officers are appointed by and ultimately answerable to the ministers under whose portfolio they sit. </p>
<p>The attorney-general, for instance, selects and appoints the human rights commissioners and is ultimately responsible for acting on, or ignoring, their recommendations. Respecting their independence, then, is a matter of political civility or conventional forbearance, rather than a legal requirement. </p>
<p>I say forbearance because, remember, those officers are there to point out where their political bosses have fallen short and to provide advice on how they might do better. It’s unsurprising that such advice isn’t always appreciated. </p>
<h2>Avoiding enfeeblement</h2>
<p>Nevertheless, we expect our political representatives to respect the advice they get from statutory officers. Not because they enjoy having their failures made public, but because we hope they’re committed to the integrity of our democratic political system, which can only operate when such checks are in place. </p>
<p>This is why the former <a href="http://www.theage.com.au/comment/how-abbott-mishandled-the-attack-on-triggs-20150301-13rsy9.html">prime minister’s</a> and <a href="https://docs.education.gov.au/system/files/doc/other/review-of-funding-for-schooling-final-report-dec-2011.pdf">attorney-general’s</a> attacks on the president of the Australian Human Rights Commission this year, over her <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf">report</a> on children in immigration detention, were so troubling. </p>
<p>The substantive issues were alarming and provoked strongly held and deeply divergent views on how Australia ought to respond to asylum seekers. But the rhetorical attacks <a href="https://theconversation.com/brandis-and-dutton-play-some-dirty-pool-in-their-fight-with-gillian-triggs-42948">went beyond</a> political differences.</p>
<p>As the highest political officers in our country, it’s incumbent on the prime minister and ministers not only to respect the independence of statutory authorities, but to model such respect. Doing so demonstrates the importance of upholding the democratic political culture to everyone in the country. When their actions and words model an ethos where political differences are more important than democratic conventions, we’re all enfeebled. </p>
<h2>The heart of democracy</h2>
<p>Like virtually every other contemporary nation-state, Australia also holds itself to account by signing up to international human rights treaties. We thereby promise the other parties to those conventions that we’ll respect certain fundamental rights. </p>
<p>When we do so, we also agree that independent monitors will periodically check up on how well we’re observing our commitments. These monitors aren’t some sort of international government that lords it over national governments. Rather, they are expert authorities we collectively establish to strengthen the meaning of our commitments. </p>
<p>But when then-prime minister Tony Abbott responded to negative comments concerning our treatment of asylum seekers from the United Nations Special Rapporteur on Torture by <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html">saying that</a> Australians were “sick of being lectured to by the United Nations”, he acted as though some interloper had intruded into the inner sanctum of our national affairs.</p>
<p>Abbott wasn’t merely expressing a difference in political opinion; he demonstrated his disrespect for the convention of honouring our international agreements and respecting the people we put in place to ensure we do so. When countries that pride themselves on their democratic credentials flinch at being called to account, they signal to others how disposable such principles actually are.</p>
<p>However much we bootstrap our democracy with laws and constitutional provisions, its lifeblood will always be our respect for a democratic culture and the informal conventions that breathe life into it.</p>
<p>This might make the whole idea of democracy seem intolerably fragile and easy to topple. But perhaps democracy relies on active assent rather than fear of sanction because it’s the only form of security worthy of a system that claims the principle of freedom, and of citizens who claim the right to govern ourselves. </p>
<hr>
<p><em>This is part of a series on <a href="https://theconversation.com/au/topics/breaking-political-conventions">breaking political conventions</a>. Look out for more articles exploring various political conventions in the coming days.</em></p><img src="https://counter.theconversation.com/content/50662/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danielle Celermajer does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws play their role in regulating our governments, but so does our own respect for political conventions. And the way these are upheld goes to the heart of our freedom as democratic people.Danielle Celermajer, Professor of Sociology and Social Policy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/429482015-06-08T06:59:37Z2015-06-08T06:59:37ZBrandis and Dutton play some dirty pool in their fight with Gillian Triggs<figure><img src="https://images.theconversation.com/files/84185/original/image-20150608-8736-1y27a5b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Dutton has proven why he should not be given sole power under the government's proposed new law to revoke the citizenship of dual nationals involved in terrorist activities.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>Last Friday, Attorney-General George Brandis and Immigration Minister Peter Dutton <a href="http://www.minister.immi.gov.au/peterdutton/2015/Pages/comments-by-professor-triggs.aspx">issued an extraordinary statement</a> declaring that the president of the Human Rights Commission, Gillian Triggs, needed to “explain her comments” linking Australia’s turn-back policy and negotiations with Indonesia about the death penalty.</p>
<p>But, it is the two ministers who should be called on to explain their statement.</p>
<p>Dutton has just provided yet more evidence as to why he should under no circumstances be given sole power – even subject to judicial oversight – under the government’s proposed new law to revoke the citizenship of dual nationals involved in terrorist activities.</p>
<p>As for Brandis: well, as the nation’s first law officer, he should, frankly, know better. Brandis professes to believe in free speech, famously defending people’s right to be bigots. Yet he calls for an explanation of an arguable proposition – whether correct or not – from someone who is perfectly entitled to make it. </p>
<p>And this person is a statutory officer who is independent of government.</p>
<p>The government’s fight with Triggs is well-known. To put it bluntly, it hates her – mostly, but not exclusively, over her inquiry into children in detention. It feels she held off the inquiry until after the 2013 election and didn’t take enough account of the Coalition’s big reduction in the number of children detained.</p>
<p>The Coalition tried to persuade Triggs to quit her position by offering her other work; she wouldn’t budge. It is attempting to discredit her and blast her out by massive attacks, of which Friday was perhaps the most brazen. The joint statement was accompanied by a news conference where Dutton denounced her.</p>
<p>At the centre of this latest row is a response, delivered in answer to a question at a Committee for Economic Development of Australia (CEDA) function on Thursday at which Triggs spoke on women and leadership, when she said: “Boats have got to stop. But have we thought about what the consequences are of pushing people back to our neighbour Indonesia? Is it any wonder that Indonesia will not engage with us on other issues that we care about, like the death penalty?”</p>
<p>The two ministers drew on a <a href="http://www.theaustralian.com.au/national-affairs/immigration/deaths-of-bali-duo-linked-to-boats-gillian-triggs/story-fn9hm1gu-1227383785324">headline in The Australian</a> which read “Deaths of Bali duo ‘linked to boats’”.</p>
<p>But Triggs in her answer had spoken about the pursuit of regional agreement on stopping capital punishment, not the execution of the two Australians. Neither the questioner nor she mentioned them. It would have been wise – if not politically convenient – for the ministers to have more carefully checked out the context.</p>
<p>Triggs has said in a statement: “My remarks in response to questions from the audience at the Economic Development of Australia forum in Adelaide have been entirely misreported by some commentators.</p>
<p>"I was making the observation that any solution to the movement of asylum seekers and refugees in our region should be by diplomatic negotiation.</p>
<p>"Like most Australians, I believe a strong diplomatic relationship with Indonesia, and all nations within the Asian region, is vitally important to us all.</p>
<p>"At no time did I refer to the recent executions of the two young Australians. Rather I spoke of the future need to work diplomatically to reach agreement on ending the death penalty in the region. This reflected my early public commentary on the need for a moratorium on the death penalty.”</p>
<p>Brandis and Dutton were not interested in context. They were men on a mission. “Her comments on the execution of Andrew Chan and Myuran Sukumaran are poorly informed and foolish. They will also be offensive to Indonesia by implying, as they do, that Indonesia’s decision to execute two Australians was influenced by international considerations,” they said in their statement.</p>
<p>“Professor Triggs chose to make her remarks with no specific knowledge of the many steps the Australian government took to save the lives of Andrew Chan and Myuran Sukumaran, and with no professional experience in diplomacy and no specialist knowledge of the Australia-Indonesia relationship.</p>
<p>"As a lawyer, she knows better than to assert conclusions in the absence of evidence. Her comments were not in defence of human rights, but a gratuitous intervention in a difficult political issue.”</p>
<p>As a matter of fact, Triggs probably knows at least as much about diplomacy as either of the ministers. Neither of them has served in a diplomatic post; she is the wife of former senior diplomat Alan Brown.</p>
<p>Even on the matter Triggs was not talking about – the executions of the two Australians – she was familiar with the issue: the Human Right Commission was in touch with a human rights commission in Indonesia.</p>
<p>Triggs also obviously has knowledge of the issue of capital punishment in the region, which was what she was addressing.</p>
<p>The jibe about asserting conclusions in the absence of evidence applies to the ministers. As a former policeman, one would have thought Dutton would have been particularly aware of the need to get the evidence right. Brandis’ cavalier attitude is alarming.</p>
<p>As for her remarks being “a gratuitous intervention in a difficult political issue”, Triggs was fully within her rights, given her position, to air an opinion. And the ministers’ tossing in of the insult “gratuitous” is, well, gratuitous.</p>
<p>Brandis and Dutton went on to point out that although Triggs said “boats have got to stop”, “she offers no suggestions as to how that might be done”.</p>
<p>Well, that’s a good thing, isn’t it? Such suggestions might have been “gratuitous”.</p>
<p>In summary, the ministers seem to have gone on a headline, and then thought they could get away with bullying and insulting in the most extreme terms, as is too often the method of this government. The media cycle being what it is, the attack becomes the story, especially when there is plenty of actuality from Dutton’s press conference.</p>
<p>It would be interesting to know whether the idea for a joint statement – headed, incidentally, “comments by Proffesor [sic] Triggs” – and Dutton’s news conference came from one of the two ministers, or some other strategic mind in the government.</p>
<p>Dutton insisted that Triggs needed to “front the media … to retract these outrageous slurs”. The “slurs” turn out to have been from the ministers. The corrections should come from them.</p>
<p><strong><a href="http://michellegrattan.podbean.com/e/bruce-billson-1433320017/?token=928bdb59fdbbe9bc296d187d6b269ef3">Listen to the latest Politics with Michelle Grattan podcast, with guest, Small Business Minister Bruce Billson, here</a> or <a href="https://itunes.apple.com/au/podcast/politics-michelle-grattan/id703425900?mt=2">on iTunes</a>.</strong></p>
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Last Friday, Attorney-General George Brandis and Immigration Minister Peter Dutton issued an extraordinary statement declaring that the president of the Human Rights Commission, Gillian Triggs, needed…Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/376372015-03-10T02:26:06Z2015-03-10T02:26:06ZIn praise of partisanship: Triggs is on the side of human rights<p>If you’ve been following the government’s attack on Human Rights Commission President Gillian Triggs and the commission’s report, <a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children">The Forgotten Children: National Inquiry into Children in Immigration Detention</a>, then you’ll know that her cardinal political sin has been to be partisan and politicised.</p>
<p>As Prime Minister Tony Abbott <a href="http://www.abc.net.au/news/2015-02-12/human-rights-immigration-report-blatantly-partisan-abbott/6087148">asked</a>:</p>
<blockquote>
<p>Where was the Human Rights Commission during the life of the former government when hundreds of people were drowning at sea? Where was the Human Rights Commission when there were almost 2000 children in detention?</p>
</blockquote>
<h2>Being partisan doesn’t mean party-political</h2>
<p>Those who have come to Triggs’ defence have correctly <a href="http://www.smh.com.au/comment/taxi-drivers-and-tony-abbott-could-learn-from-children-inside-our-detention-camps-20150304-13ulod.html">pointed out</a> that the Forgotten Children report takes Labor to task as well as the current government. And Triggs herself has <a href="http://www.theaustralian.com.au/national-affairs/immigration/tony-abbott-slams-blatantly-partisan-triggs-call-on-children/story-fn9hm1gu-1227216895923">denied</a> that her report is politicised or partisan.</p>
<p>It’s true that Triggs’ report apportions responsibility for Australia’s brutal detention policies to both sides of politics. But in trying to deflect the government’s criticisms, we shouldn’t throw out partisanship and politicisation entirely.</p>
<p>In fact, a Human Rights Commission that isn’t partisan or politicised isn’t worth having.</p>
<p>How can a serious discussion of children in detention – or innocent people in detention whatever their stage of life – be anything other than political or partisan? Is the commission expected to say some nice things about mateship and Australia being a sport-loving country in its future reports to balance out the less savoury aspects of our national story? </p>
<h2>A false ‘balance’ is not being objective</h2>
<p>Part of the problem with criticisms of partisanship is the widespread misconception that it is the opposite of being objective and truthful. People who are partisan, according to this view, have an incomplete view of how things really are. If a more balanced view was taken about children in detention, for example, it’s assumed that things would look a whole lot better for the government.</p>
<p>But that in itself is to misunderstand partisanship. The truth is that partisanship and objectivity aren’t polar opposites. Properly understood, partisanship and objectivity are bedfellows. A measure of partisanship — and therefore politicisation – is required to be objective.</p>
<p>As Irish philosopher Terry Eagleton notes in his book <a href="https://philosophynow.org/issues/55/After_Theory_by_Terry_Eagleton">After Theory</a>:</p>
<blockquote>
<p>Objectivity and partisanship are allies, not rivals. What is not conducive to objectivity on this score is the judicious even-handedness of the liberal. It is the liberal who falls for the myth that you can only see things aright if you don’t take sides … The liberal has difficulty with situations in which one side has a good deal more of the truth than the other — which is to say, all the key political situations.</p>
</blockquote>
<h2>Policy of deterrence is ethically confused</h2>
<p>Abbott’s insistence that Triggs’ assessment of children in detention would be more acceptable if she were also to note the reduction in boat arrivals perpetuates this myth of even-handedness. On Abbott’s reasoning, once you take into account the reduction in the number of drownings, the practice of locking up kids supposedly becomes a defensible enterprise.</p>
<p>Of course, it isn’t. The two don’t – and cannot – balance each other out in a way that is ethically acceptable.</p>
<p>On the contrary, once you try to square things up in this way, Australia’s policies on detention, as enacted by both of the major parties, are even more barbaric. What Abbott and his supporters are effectively saying is that locking up some human beings is defensible if it dissuades other ones from stepping on to leaky boats.</p>
<p>Such a calculation flies in the face of a whole tradition of ethical thought, stretching back <a href="http://en.wikipedia.org/wiki/Categorical_imperative#The_Second_Formulation">to at least Immanuel Kant</a>, who holds that people are only ever to be treated as ends in themselves – rather than as a means to an end.</p>
<p>Against such a backdrop, it might have been best for the Abbott government to simply take the criticisms of the Human Rights Commission’s report on the chin.</p>
<p>Discussion about the timing of the Forgotten Children report and charges of partisanship are nothing but a beat-up by a government desperate for a distraction from ongoing leadership woes.</p>
<p>While human rights commissioners, journalists and academics – and anyone else who is in the business of seeking truth – have an obligation to avoid partisanship to a particular party or party line, Triggs’ report has avoided that, as any non-jaundiced reading of her report shows.</p>
<p>But we should never accept that a Human Rights Commission ought to be non-partisan or depoliticised. Without both, it would be incapable of doing its job.</p><img src="https://counter.theconversation.com/content/37637/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Scanlon does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We should never accept that a Human Rights Commission ought to be non-partisan or depoliticised. Without both, it would be incapable of doing its job.Christopher Scanlon, Academic Director, Learning Focus Area Hub, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/380332015-02-25T22:51:11Z2015-02-25T22:51:11ZDid Brandis break the law in requesting Triggs’ resignation?<figure><img src="https://images.theconversation.com/files/73004/original/image-20150225-25679-bqvti6.jpg?ixlib=rb-1.1.0&rect=35%2C28%2C2331%2C1537&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The most recent allegations against George Brandis stem from Gillian Triggs' evidence to a Senate estimates hearing.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The ongoing controversy surrounding the Australian Human Rights Commission (AHRC) and its president, Gillian Triggs, has involved claim and counter-claim of bias, influence and improper conduct. Beyond the political rhetoric and point-scoring, the saga has raised serious political and legal questions about the AHRC’s independence.</p>
<p>Perhaps the most alarming of these questions is the allegation of <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;a********dv=yes;orderBy=priority,doc_date-rev;query=Dataset%3Aestimate;rec=0;resCount=Default">malfeasance</a> against Attorney-General George Brandis for “corrupt and unlawful conduct” against an office within his portfolio. </p>
<h2>The referral</h2>
<p>The most recent allegations against Brandis stem from Triggs’ evidence to a Senate estimates hearing earlier this week. She told the committee that on February 3, prior to the publication of an AHRC <a href="https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf">report</a> on children in immigration detention, the attorney-general’s departmental secretary, Chris Moraitis, delivered a request for her to resign her office on Brandis’ behalf. </p>
<p>Triggs said she was to be offered “other work with the government” if she resigned. As a consequence, shadow attorney-general Mark Dreyfus formally referred the matter to the Australian Federal Police (AFP). Drefyus <a href="http://www.documentcloud.org/documents/1675088-possible-contravention-of-criminal-code-by.html#document/p1">wrote</a>:</p>
<blockquote>
<p>The Attorney-General’s offer to an independent statutory officer of an inducement to resign her position as President, with the object of affecting the leadership of the AHRC to avoid political damage to the Abbott Government, may constitute corrupt and unlawful conduct.</p>
</blockquote>
<h2>Independent officers and the separation of powers</h2>
<p>The independence and impartiality of public officers is a fundamental aspect of the rule of law which underpins Australia’s constitutional democracy. That is especially true of legal officers, who should ordinarily hold the government to account and keep it in check. </p>
<p>Despite its pivotal role in ensuring that the government adheres to its human rights obligations, the AHRC is not a judicial body – which the High Court <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/high_ct/183clr245.html">asserted in 1995</a>. Rather, the AHRC is <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s11.html">empowered</a> to undertake self-initiated, non-judicial inquiries, give advice and report on governmental compliance with the human rights obligations set out in Commonwealth and international law. But the commission lacks the courts’ constitutional safeguards. </p>
<p>These inquisitorial, “quasi-judicial” roles can make administrative scrutiny bodies such as the AHRC particularly unpopular with the government of the day and prime candidates for political and executive interference.</p>
<p>While the conduct of Moraitis – and, more importantly, of Brandis – might have constituted a breach of separation of powers had the statements been made to a judge, Triggs is part of the executive. She falls under the attorney-general’s ministry. As such, the legality of the alleged offer must be determined by legislation alone – not constitutional principles. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/73111/original/image-20150225-1774-1gpk6w7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The High Court asserted in 1995 that the Human Rights Commission is not a judicial body.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<h2>Relevant legislation</h2>
<p>Given that it is not a court, the AHRC does not have an inherent power to punish for contempt of the administration of justice – which includes interfering with or attempting to influence a judicial or parliamentary officer. </p>
<p>Its supporting legislation only prevents persons from <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s26.html">interfering with a member</a> “participating in an inquiry or examination” or an office ; or “holding an inquiry or carrying out an investigation under this Act”. </p>
<p>While there is nothing in the Australian Human Rights Commission Act that would preclude government MPs being included in such interference, the meeting between Moraitis and Triggs occurred after the AHRC’s inquiry had concluded. This leaves the question of the legal appropriateness of such conduct to other Commonwealth legislation, specifically the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Commonwealth Criminal Code</a>. </p>
<p>The code establishes a range of offences that apply to and protect “Commonwealth public officials” from interference and bias. These include “influencing a Commonwealth public official”; “unwarranted demands of a Commonwealth public official”; “corrupting benefits given to a Commonwealth public official”; and “bribery of a Commonwealth public official”. </p>
<p>Under the code, Commonwealth public officials include both “ministers” and “an individual who holds or performs the duties of an office established by or under a law of the Commonwealth”. This would include the AHRC president. Beyond this, it must be established that the impugned conduct is directed at influencing the performance of their duties as such. </p>
<p>Take “bribery of a Commonwealth public official” as an example. Although the following observations may equally apply to the other offences mentioned, the code provides:</p>
<blockquote>
<p>A person is guilty of an offence if the person dishonestly … offers to provide, or promises to provide, a benefit to another person; or causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and the person does so with the intention of influencing a public official (who may be the other person) in the exercise of the official’s duties as a public official; and the public official is a Commonwealth public official; and the duties are duties as a Commonwealth public official.</p>
</blockquote>
<p>The offence potentially captures the type of conduct ascribed to both Brandis (“causing an offer to be made”) and Moraitis (“offering or promising to provide a benefit”). “Benefit” is defined in the code to include any advantage, not limited to property. The offer of “other work” with the government is likely to constitute a “benefit” under this test.</p>
<p>It would also have to be established that “resigning from a statutory office” is part of the “exercise of the official’s duties as a public official”. It would seem reasonable to conclude that it would be.</p>
<p>However, the question of guilt is ultimately likely to turn upon highly subjective considerations. The first is whether the offer or promise was made dishonestly. The definition of “dishonest” in the code creates a two-stage test which requires both that the conduct is objectively dishonest and that the accused knows that this is the case. The code goes on to state that the determination of dishonesty is a question of fact. </p>
<p>The second is whether the intention behind the offer was to influence Triggs in the way described. The most serious of the bribery offences contained in the code attracts a high maximum penalty of ten years’ imprisonment for an individual offender. Accordingly, it requires proof of subjective intent to influence. </p>
<p>The code also contains a similar, though less serious, version of the offence, which attracts a maximum penalty of five years’ imprisonment. Proof of this offence is facilitated by the imposition of a less demanding objective test of whether the benefit would tend to influence a public official.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/73112/original/image-20150225-1819-1aaslkb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">According to evidence at a Senate estimates hearing, the attorney-general’s departmental secretary, Chris Moraitis, conveyed a request to Gillian Triggs that she resign.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<h2>A larger governance problem</h2>
<p>The problem with all of this is that Moraitis was acting as Brandis’ representative and Brandis is an elected representative responsible for the AHRC. There is a fine line between dishonest influence and the honest reproval by a minister of the affairs of a statutory agency under his portfolio – even if that reproval indicated that the minister no longer was confident in the officer in charge. </p>
<p>Where that boundary lies is a legal question which must ultimately be left to the courts. This is assuming that the AFP commissioner chooses to act on the reference at all. </p>
<p>Like the AHRC president, the AFP commissioner is ultimately an officer of the Commonwealth, albeit with a different range of powers and protections. But there will certainly be legal considerations to take into account. One is that the allegations made thus far are <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ppa1987273/s16.html">not admissible in court</a> as they were made to a parliamentary committee under privilege. An entirely new investigation, interviews and evidence would be required. </p>
<h2>The real victim is goodwill</h2>
<p>Regardless of whether Brandis’ action was illegal, it represents an attempt by the very institutions charged with protecting the rule of law to unduly influence it. That is a worrisome development and perhaps indicates the need to strengthen legislative protections for independent offices such as the AHRC to a level equivalent to the courts. </p>
<p>In a wider setting, it seems to indicate a confusion between maintaining goodwill and mandating endorsement. The AHRC statute makes it clear that the commission has discretion to investigate as it sees fit, not investigate simply what the government wants it to in a manner or at a time that is politically convenient. </p>
<p>That Triggs has apparently lost the support of the government for undertaking that statutory duty is evidence of a larger attitudinal problem the government has with contrary views and criticism. The consequence is a loss of the goodwill between the government and the AHRC that is so vital to effective executive scrutiny. </p>
<p>Without police or judicial powers, the AHRC requires government participation both to investigate matters and to put its recommendations into effect. Neither of those things is likely to happen now. The result is likely to be a commission with little traction or influence – but perhaps that was the point all along.</p><img src="https://counter.theconversation.com/content/38033/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Regardless of whether George Brandis’ action was illegal, it represents an attempt by the very institutions charged with protecting the rule of law to unduly influence it.Brendan Gogarty, Lecturer in Constitutional Law, University of TasmaniaHelen Cockburn, Lecturer In Criminal Law , University of TasmaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/380452015-02-25T11:59:51Z2015-02-25T11:59:51ZWhen is an offer not an offer? Ask Julie Bishop<figure><img src="https://images.theconversation.com/files/73048/original/image-20150225-1761-1gfpqap.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In parliament Julie Bishop flatly contradicted evidence given by a senior public servant.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The government’s <a href="https://theconversation.com/labor-refers-brandis-to-police-over-offer-to-human-rights-commission-president-37984">war on Human Rights Commission president</a> Gillian Triggs has deepened into a major test of credibility, with Foreign Minister Julie Bishop flatly contradicting evidence given by a senior public servant.</p>
<p>Bishop was asked in parliament on Wednesday what role the government had offered Triggs – who it was trying to pressure out of the commission.</p>
<p>The minister gave the House a short, unequivocal reply. “I can advise that no such offer was made.”</p>
<p>This sits totally at odds with what Chris Moraitis, secretary of the Attorney-General’s department, said to a Senate estimates hearing on Tuesday.</p>
<p>Moraitis said that Attorney-General George Brandis had instructed him to tell Triggs that Brandis had lost confidence in her as commission chair but that “the government was prepared to consider a specific senior role, which was mentioned to me and which I conveyed, for Professor Triggs”.</p>
<p>Moraitis couldn’t inform the committee of the nature of the role, he said, because “I have been told that actually it is quite sensitive, involving other matters that I would rather not go into in public”.</p>
<p>This could hardly be more specific, and why Bishop, usually so smart, would put herself into a corner is a mystery.</p>
<p>It’s all the stranger because Bishop based her answer on a personal discussion on Wednesday with Moraitis, who until recently was a deputy secretary in her department. He’s someone she regards highly and was sorry to lose.</p>
<p>In answering a subsequent question Bishop said Moraitis had confirmed to her that Triggs had not been asked to resign and was not offered an “inducement” to leave.</p>
<p>The first point is playing with words. Moraitis had been dispatched to try to get Triggs to quit, though he said he didn’t use the word “resignation” – something disputed by Triggs.</p>
<p>As to whether the offer was an “inducement” within the legal meaning – that is a matter being examined by the Australian Federal Police.</p>
<p>One possible explanation of Bishop’s claim was that she might be defining offer as meaning a detailed job description, salary, and so forth. But she didn’t say so.</p>
<p>An interesting sidelight is that the role offered apparently was in an area of Triggs’ international expertise that she and Brandis had canvassed on a couple of previous occasions.</p>
<p>For the second day, Tony Abbott ranted against Triggs and the children in detention report, dismissing “Shorten QC” as obsessed with “Canberra insider nonsense”.</p>
<p>The opposition cut short its questions to try unsuccessfully to suspend standing orders to move a censure against Brandis. Although Bill Shorten delivered a strong speech that tapped into people’s negative views about “the angry prime minister”, it could have been more productive to probe with more questions whether Bishop was misleading the parliament. The censure debate could have waited a day; the Senate, with the government in a minority, may censure Brandis next week.</p>
<p>While the row over the Human Rights Commission turned into a lawyers’ picnic, alternative leader Malcolm Turnbull conspicuously distanced himself from the government’s tactics.</p>
<p>Turnbull told reporters he didn’t want to get involved in comment – “other people can do that if they wish”. </p>
<p>“I’m not going to engage in a discussion about personalities,” Turnbull said.</p>
<p>Turnbull had known Triggs for many years and “she’s a very distinguished international legal academic”, he said. “The critical thing is the children.”</p>
<p>Turnbull also marked out his own territory on another stick of dynamite that’s sitting under the government – <a href="https://theconversation.com/former-liberal-president-tells-partys-executive-to-settle-down-38054">the leaked correspondence</a> from Liberal Party treasurer Philip Higginson, who has called for more financial transparency and accountability in the party, and attacked the Peta Credlin-Brian Loughnane diarchy.</p>
<p>Abbott on Tuesday dismissed the Higginson “storm in a teacup”; Turnbull on Wednesday said “we should as a party set a very high standard in accountability and transparency”.</p>
<p>Meanwhile, Social Services Minister Scott Morrison, who would likely be treasurer if there were a Turnbull government, was giving an impressive National Press Club performance in making the case for the reform of the nation’s welfare system, always a fraught subject.</p>
<p>Morrison framed his argument in terms of the positives that might be achieved if changes could be made. No-one could miss the sharp contrast with the more negative and punishing language that has been adopted by Hockey in his budget pitches. </p>
<p><strong>Listen to the latest <a href="http://michellegrattan.podbean.com/e/cathy-mcgowan-1424744949/">Politics with Michelle Grattan podcast with guest, Cathy McGowan, here</a>.</strong></p>
<iframe id="audio_iframe" src="https://www.podbean.com/media/player/9i8gf-54072a/initByJs/1/auto/1" width="100%" height="100" frameborder="0" scrolling="no"></iframe><img src="https://counter.theconversation.com/content/38045/count.gif" alt="The Conversation" width="1" height="1" />
The government’s war on Human Rights Commission president Gillian Triggs has deepened into a major test of credibility, with Foreign Minister Julie Bishop flatly contradicting evidence given by a senior public servant.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/380292015-02-25T06:40:16Z2015-02-25T06:40:16ZTeam Australian: government’s media ally has helped stitch up Triggs<figure><img src="https://images.theconversation.com/files/73000/original/image-20150225-25679-t1gqe3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gillian Triggs has been subjected to sustained attacks from government MPs and The Australian newspaper in recent times.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>It is an ugly spectacle when a newspaper aligns itself with the executive government in an attempt to hound from office someone who can otherwise be removed only by the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s41.html">Governor-General</a>. This is what The Australian is doing, in concert with <a href="http://www.smh.com.au/federal-politics/political-news/a-political-stitch-up-tony-abbott-says-government-has-lost-confidence-in-gillian-triggs-20150224-13nf4x.html">Prime Minister Tony Abbott</a> and <a href="http://www.smh.com.au/federal-politics/political-news/a-fatal-perception-of-bias-george-brandis-admits-he-asked-gillian-triggs-to-resign-20150224-13n59y.html">Attorney-General George Brandis</a>, to Australian Human Rights Commission President Gillian Triggs.</p>
<p>It is the latest in a series of campaigns the newspaper has waged against those in public life with whom it disagrees or against whom it has a grievance.</p>
<p>However, these campaigns have usually had the advancement of The Australian’s own self-interest or the settling of personal scores as their originating motivation.</p>
<p>For example, it was aggrieved by its treatment at the hands of former Victoria Police chief commissioner Simon Overland. To settle the score, The Australian waged a <a href="http://www.abc.net.au/news/2011-06-20/mayne3a/2764018">sustained campaign</a> for <a href="http://www.theaustralian.com.au/opinion/cutandpaste/melbourne-media-mourns-as-papers-scurrilous-campaign-claims-blameless-police-chief/story-fn72xczz-1226076673074">his removal</a>. In the end, Overland <a href="http://www.news.com.au/national/decision-to-release-dodgy-crime-stats-was-overlands-alone-ombudsman/story-e6frfkvr-1226076239399">resigned</a> in messy political circumstances to which The Australian made a contribution by giving the then-Victorian Coalition government the strength of the <a href="http://www.theaustralian.com.au/national-affairs/state-politics/simon-overland-was-the-wrong-man-for-the-job-of-victoria-police-chief/story-e6frgczx-1226076402840">newspaper’s convictions</a>.</p>
<p>More recently, The Australian waged a <a href="http://www.theaustralian.com.au/opinion/editorials/press-council-runs-off-the-rails/story-e6frg71x-1227018480717">similar</a> <a href="http://www.theaustralian.com.au/business/media/newspapers-challenge-to-press-council-chairman-julian-disney/story-e6frg996-1227018623207">campaign</a> against the then-chair of the Australian Press Council, Julian Disney, whose reforms to stiffen the effectiveness of the council the newspaper opposed. Disney served out his full term, which came to an end <a href="https://theconversation.com/making-media-accountable-to-the-public-bolsters-press-freedom-37156">this month</a>, but the campaign diverted energy and resources from the reform effort.</p>
<p>However, in Triggs’ case, the originating motivation looks different. This time the motive appears to be purely ideological. The campaign is clearly designed to play into the political process in a way that is closely aligned with the political interests and strategy of the executive government.</p>
<p>The contours of this strategy can be discerned from a statement by Brandis, reported in The Australian on Wednesday. Brandis is <a href="http://www.theaustralian.com.au/national-affairs/gillian-triggs-resignation-offer-referred-to-australian-federal-police/story-fn59niix-1227237985008">reported</a> as saying that:</p>
<blockquote>
<p>… anger within the government intensified amid “very savage attacks” on Professor Triggs from MPs including the Prime Minister and “strongly expressed” criticism in the media, including in The Australian.</p>
</blockquote>
<p>It might well have read “principally The Australian”.</p>
<p>Neat, isn’t it? Your media allies lend their platforms to help you advance your political objectives, and their coverage is then cited as a ground for legitimising those objectives.</p>
<p>In our democracy, the media are meant to act as the “fourth estate” – the institution that holds to account the other three. It is a betrayal of this function to become enmeshed with the executive’s political strategy, as The Australian has done in the Triggs case.</p>
<p>It is, of course, a matter of degrees. Clearly, the Coalition government and The Australian have a shared conservative ideology. It is well within their rights to share it. They are both affronted by what they say is anti-government partisanship on Triggs’ part, as they are obviously entitled to be.</p>
<p>However, the point where shared ideology, shared political interests and shared opinions shade into betrayal of fourth-estate independence is difficult to define with precision. Some markers might be these:</p>
<ul>
<li><p>To what extent and with what prominence does the newspaper publish material that is contrary to the shared political interest? For instance, what attention was paid, and with what prominence, to the offer of an alternative job said by Triggs to have been made to her in circumstances that suggested to her that it was an attempt to procure her resignation? This is a serious matter and it has been <a href="https://theconversation.com/labor-refers-brandis-to-police-over-offer-to-human-rights-commission-president-37984">referred</a> by shadow attorney-general Mark Drefyus to the Australian Federal Police for investigation.</p></li>
<li><p>What spectrum of opinion has been represented in the newspaper’s opinion pages on this matter?</p></li>
<li><p>What has been the tone of the news reportage?</p></li>
<li><p>To what extent is there evidence of interplay between government MPs and the newspaper in the way the story has developed? For instance, how much of the coverage is based on government backgrounding of the newspaper?</p></li>
</ul>
<p>So far, there is scant evidence of this last factor. But on the remaining three we can make some observations. The issue of a possible inducement received a very low level of attention; the spectrum of opinion has been all against Triggs; and the tone of reporting has been unmistakably hostile to her, as have the headlines.</p>
<p>If it was just a one-off case, The Australian’s conduct would perhaps not merit such attention, but it is part of a pattern that ill-serves the public interest. There is a due process for removing statutory office-holders. The grounds for removing a member of the Human Rights Commission are confined to misbehaviour or physical or mental incapacity. Nothing Triggs has done has triggered that process.</p>
<p>Triggs may have lost the confidence of Abbott and Brandis, but that is not a ground for removing her. As The Australian itself has said, she is on political trial and Abbott has delivered his verdict. In doing so, he spoke of a “stitch-up”. </p>
<p>But if there is a stitch-up going on here, it is what the government and The Australian are joined in doing to Triggs.</p><img src="https://counter.theconversation.com/content/38029/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The attacks on Gillian Triggs are the latest in a series of campaigns The Australian has waged against those in public life with whom it disagrees or against whom it has a grievance.Denis Muller, Senior Research Fellow in the Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/379842015-02-24T12:29:42Z2015-02-24T12:29:42ZLabor refers Brandis to police over offer to Human Rights Commission president<figure><img src="https://images.theconversation.com/files/72885/original/image-20150224-32209-1370c7t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Human Rights Commissioner Gillian Triggs said she had no doubt the seeking of her resignation and the offer of a future role were connected.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>After a day-long government assault on Human Rights Commission president Gillian Triggs, she’s still in place. But Labor has asked the police to investigate the conduct of Attorney-General George Brandis.</p>
<p>It has not exactly been a political triumph.</p>
<p>An embattled government has embarked on an unnecessary fight, all because it is furious about the commission’s <a href="https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children">“Forgotten Children” report</a>.</p>
<p>Its main beef is that the inquiry was started after the Coalition – which has released a large number of children in immigration detention – came to power, rather than under Labor, when the numbers were at a peak.</p>
<p>The government may indeed have a reasonable argument on timing. But the political cost of its vendetta, the full details of which emerged at a Senate estimates hearing on Tuesday, is mainly to itself.</p>
<p>It looks to be persecuting the woman who’s stood up for the children.</p>
<p>It flaunts its prejudice. Liberal senator Ian Macdonald, chair of the estimates committee, said he hadn’t even read the report. “I don’t waste my time reading documents I am going to take no notice of,” he told Sky.</p>
<p>And, unless Triggs suddenly crumples, the government can’t win. Brandis made it clear there was no allegation of misconduct against her. Her statutory five-year term runs to mid-2017.</p>
<p>It took backbencher Craig Laundy, speaking in the Liberal party room, to point to a better tactic. Laundy told his colleagues he’d just spent a week in his Sydney electorate of Reid, a “compassionate place”, and he was getting push-back. The government should be focusing on the children, not shooting the messenger, he said.</p>
<p>But Abbott, programmed for aggression, had Triggs squarely in his sights at question time, and evidence to the committee during Tuesday documented how Brandis had sent his emissary, armed with a modest lump of sugar, to see if Triggs could be pushed out.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/72898/original/image-20150224-25693-tqwgrt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">George Brandis looks at Gillian Triggs during the estimates hearing on Tuesday.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<p>At the committee hearing, the scene was surreal, with the key players on both sides of the battle sitting cheek by jowl to face the questioning senators.</p>
<p>Triggs recounted how, in a February 3 meeting, the Attorney-General’s departmental secretary, Chris Moraitis, informed her “he had been asked to deliver the message from the Attorney that he required my resignation … [Moraitis] told me that no reason had been given”.</p>
<p>The secretary had also “said that I would be offered other work with the government” in some advisory capacity using her expertise as an international lawyer.</p>
<p>Triggs said she had no doubt the seeking of her resignation and the offer of a future role were “connected”.</p>
<p>Triggs rejected the proposition out of hand, thinking it “a disgraceful proposal”.</p>
<p>“To suggest that I should, in the light of the political environment and the concerns about the inquiry, quietly step down and take another position that might reflect my skills I thought was an entirely inappropriate offer to make someone who has a position that is designed to prevent that kind of proposal.”</p>
<p>Moraitis’ evidence differed in detail. He said Triggs had earlier requested he seek Brandis’s views “about her role and her status as chairman”, and he passed this on to the minister.</p>
<p>Brandis subsequently instructed him to tell Triggs that he did not have confidence in her as commission president but had high regard for her legal skills and “the government would be prepared to consider positively a senior legal role for her”. He denied using the word “resignation” to her.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=490&fit=crop&dpr=1 754w, https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=490&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/72900/original/image-20150224-25702-1xcqoz5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=490&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Attorney-General Secretary Chris Moraitis reacts during the Senate Estimates hearing.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<p>Moraitis – who incidentally was one of Triggs’ law students – appeared uncomfortable at the hearing, the more so as he had to confess he’d lost his notes of conversations.</p>
<p>That Brandis delegated the conveyance of the bad news to his recently appointed departmental head is a bad look. Originally Brandis had intended to meet Triggs himself, but cancelled to attend a prime ministerial function.</p>
<p>Triggs was careful to avoid describing the offer as an “inducement”. “I prefer not to use that term, especially as it is a legal term of art. At that time, I would not have been thinking along those lines at all. But I certainly, in a layman’s sense, saw it as a basis for motivation.” Not, however, one that motivated her.</p>
<p>Naturally Greens senator Sarah Hanson-Young had no such inhibition, telling the committee: “It sounds like a bribe, it smells like a bribe. What we’re trying to work out is whether it is.”</p>
<p>For Labor, it was off to the police, with shadow attorney-general Mark Dreyfus heading his letter to Police Commissioner Andrew Colvin: “Possible Contravention of the Criminal Code by the Attorney-General”.</p>
<p>Dreyfus wrote that Brandis’ “offer to an independent statutory officer of an inducement to resign her position as president, with the object of affecting the leadership of the [commission] to avoid political damage to the Abbott government may constitute corrupt and unlawful conduct”. He asked for a police investigation “as a priority” and a referral to the Director of Public Prosecutions if appropriate.</p>
<p>At the hearing, Brandis sought to deal with the obvious question: if the government wanted to get rid of Triggs from her post why would it think her suitable for some other role?</p>
<p>Brandis said he had concluded after a November estimates hearing, where Triggs gave “inconsistent and evasive evidence” about the inquiry’s origin, and from what was being said about her within the government, that it was “not tenable” she continue in her position.</p>
<p>“The political impartiality of the commission had been fatally compromised”; she had “lost the confidence of one side of politics”.</p>
<p>Still, Brandis professed to have a high regard for Triggs personally and professionally. He’d heard she’d been considering her position and that she was concerned about “damage to her reputation were she to stand aside against this barrage, in particular of press and political criticism. I did not want to see her reputation damaged.”</p>
<p>Abbott, in a blustering question time performance, professed to know nothing about the Brandis offer. “I do not claim to be across what may or may not have been canvassed between the President of the Human Rights Commission and the Attorney or indeed any other member of this government,” he told the House.</p>
<p>“All I know is that this government has lost confidence in the President of the Human Rights Commission,” repeating his claim that the inquiry had been a stitch-up.</p>
<p>Is it really credible Abbott wasn’t briefed on the discussions with Triggs?</p>
<p>The government is trying to force out the head of a statutory body, the issue is being fiercely contested at a committee hearing on the day, and the prime minister says he is not across it!</p>
<p>If this is true, Abbott is guilty of arrogance or negligence.</p>
<p>Reflecting on the situation towards the end of the day, Brandis told the committee, “I don’t know where we go from here.” Indeed. The government, one might say, had stitched itself up.</p>
<p><strong>Listen to the latest <a href="http://michellegrattan.podbean.com/e/cathy-mcgowan-1424744949/">Politics with Michelle Grattan podcast with guest, Cathy McGowan, here</a>.</strong></p>
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After a day-long government assault on Human Rights Commission president Gillian Triggs, she’s still in place.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.