Human Rights In Australia by
Doctor Mark Cooray
| 13— The Human Rights Commission |
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| 13.0 | Introduction |
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| 13.1 | The Commission's Power |
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| 13.2 | The Rights Which Concern The Commission |
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| 13.3 | The Judicial Role Of The Commission |
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| 13.4 | The Educational Role Of The Commission |
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| 13.5 | Indoctrination By The Commission |
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| 13.6 | Policy-Making By The Commission |
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13.0 Introduction
The Human Rights Commission was established to educate the
community. A great deal can be done to educate the public
about voluntary respect for human rights. The HRC has made
few efforts in this direction. It has published papers
making the case for coercion and regulation in relation to
specific human rights. The HRC is not concerned about human
rights in their totality. Such an analysis must take account
of the need for duties and responsibilities and the
relationships between rights. The examination of human
rights in their totality must involve an examination of the
necessary restrictions on rights as well as an evaluation of
the more important rights. It is submitted for reasons
provided above that freedom of speech, freedom of the person
and freedom of property are the most important rights. The
Human Rights Commission is unconcerned about a framework of
rights and has operated to focus on specific rights and to
exalt those rights over and above all other human rights,
with no reference to a justification why some rights should
be exalted over others. The Commission has been influenced
by socialist engineers who wish to change society in a
particular direction.
The Moens affair is an indictment on the Human Rights
Commission and the manner in which it operates. It
demonstrates the manner in which it is only concerned with
certain perspectives and the suppression of others. It is
not concerned about fair and honest debate and the
presentation of a variety of viewpoints. It is merely
concerned about propagating the views and philosophies of a
few persons who are influential in its activities.
13.1 The Commission's Power
When introducing the bill to set up the Human Rights
Commission, the then Minister, The Hon Mr Ian Viner, said
that the purpose of the Commission is "to promote discussion
and understanding of human rights in the community generally
and to recommend to the Government and to Parliament changes
in law and practice required to bring them into line with
human rights as defined by the International Covenant or
other human rights instruments". However, by a separate
enactment introduced simultaneously, the new Commission is
given the additional power to conciliate in disputes
relating to racial discrimination. Thus from its very
inception, it was invested with the contradictory roles of
educator and arbiter with respect to human rights.
The Human Rights Commission Act also set up the Commission
as a kind of ombudsman on matters relating to human rights
with power to investigate and report on acts or practices of
government institutions and agencies which contravened human
rights. The Commission is also required to examine and
determine the consistency of Commonwealth laws with human
rights.
The Sex Discrimination Act, 1984, confers a further
important power to the Commission. This Act gives it the
power not merely to conciliate but also to make
determinations of allegations relating to sex discrimination
(Section 81). And in a measure which violated the canons of
natural justice, it was given the power to pursue the
enforcement of its own orders in the Federal Court - an
arrangement which is similar to giving a trial judge the
power to be the prosecutor in appeal.
13.2 The Rights Which Concern The Commission
The Commission is not concerned with all human rights but
only those which are specified in the above mentioned Acts
or the international treaties referred to in its own
statute. The list of treaties can be expanded by a
declaration of the Minister, made under section 31. Although
such declarations require the approval of Parliament they
need not be discussed, debated and enacted like other Acts
of Parliament. This power enables the party in government to
selectively introduce rights into the jurisdiction of the
Commission. Mr Viner in introducing the legislation admitted
that the Commission's concern is with human rights "as
defined by the International Covenant or other human rights
instruments". These documents, as explained in chapter 4.2,
reflect the ideology of a majority of nations which do not
share the western democratic tradition. They are conspicuous
in their disregard of property rights, which are
indispensable to the realisation of all other rights See
chapter 8.1. Hence they do not fully represent the traditional
concepts of liberty evolved in the western world.
13.3 The Judicial Role Of The Commission
An examination of the legislative provisions relating to the
Commission exposes the artful attempt to confer on the
Commission the respectability and authority of a Court of
law without subjecting it to the rigorous standards
expected of the Courts. The Act requires the Chairman to be
a judge or lawyer. It has power to compel the giving of
evidence and the production of documents and its authority
is protected by penal sanctions in much the same way as that
of a regular court.
The Commission, as yet, has no power to hand down conclusive
judgements, in the technical sense, in disputes arising from
private conduct. Nevertheless, in practical terms, its
authority is substantially judicial. Civil actions in
respect of racial discrimination cannot be instituted
without a certificate from the Commission or one of its
bureaucrats stating that the dispute has gone through its
conciliation procedures. In the case of sex discrimination a
determination of the Commission is a condition precedent to
the institution of proceedings in the Federal Court and it
is the determination of the Commission that is enforced by
the Court. The judicial nature of this power is discussed in
chapter 2.5.
There is also a strong judicial element in the Commission's
power to investigate acts and practices of government
agencies (Section 9). One of the principal objects of the
Commission is to monitor the government's own observance of
human rights. Citizens have accordingly been given the right
to complain of government violations of human rights.
Although the Commission may only report to the Minister,
there is an expectation that the government will honour the
determinations of the Commission. Therefore, in relation to
administrative violations, there is a greater degree of
finality in the determinations of the Commission, which is a
characteristic of judicial power.
There is another significant dimension of this power which
has not yet been realised. The Commission has the power to
investigate "any act or practice inconsistent with or
contrary to any human rights". The words "act or practice"
have been defined to include "acts done or practice engaged
in by or on behalf of the Commonwealth or an authority of
the Commonwealth or under any enactment". Courts having
Commonwealth jurisdiction may be regarded as authorities of
the Commonwealth. In any case they function under enactments
of Parliament. Thus in terms of the definition of "acts and
practice", the conduct of judicial proceeding by regular
courts of law come within the purview of the Commission.
This is necessarily so as numerous human rights set out in
the Covenant can be violated by judicial action (eg the
right to expeditious trial, adequate notice of charge,
assistance of interpreters, examination of witnesses, and
the right to a public hearing see article 14). The
Commission therefore technically has the power, if it
wishes, to inquire into the conduct of a judicial proceeding
with all the coercive power at its command. Such an inquiry
could conceivably include the summoning and examination of
the judges themselves.
To require greater judicial compliance with due process and
other safeguards is a high priority. However, the tradition
of the independence of the judiciary requires that judicial
actions should be reviewed only by courts of law and not by
bureaucrats. Even though the Commission can only report to
the Minister, its coercive powers would render any inquiry
into judicial conduct wholly repugnant to the principle of
judicial independence. The fact that the Commission may not
intend to conduct any such inquiry does not mitigate the
legislative indiscretion.
The Commission's power to determine the inconsistency of
laws with human rights is again suggestive of judicial
functions.
When the scheme of the Human Rights Commission Act is
examined it is clear that the underlying policy is not to
create a set of judicially enforceable rights, but a system
of rights that will exist according to the determination of
the Commission, with a further governmental discretion
regarding implementation. The rights specified in the
several international instruments are non-justiciable, but
are determinable by the Commission. The determinations of
the Commission are unenforceable except by executive
discretion. Thus the scheme combines the elements most
obnoxious to the fair resolution of disputes affecting
rights and duties. The Commission has an integral role in
the adjudicative process set up by the Act. Yet it is not a
court of law with the appropriate safeguards against
interference with its functions. It is essentially a
bureaucratic organisation performing a variety of functions.
The Commission is not a court in the technical sense. It
does not make final decisions and it deals not with rights
but with expectations. In practical terms it is very much an
adjudicative body with power to make decisions affecting
rights and duties. The fact that ultimate enforcement
depends on political discretion serves only to make the
scheme more oppressive.
13.4 The Educational Role Of The Commission
In considering the educational role of the Human Rights
Commission it cannot be over-emphasised that it is
essentially a political institution. The members of the
Commission are politically appointed. Their tenure is for
five years with eligibility for reappointment at political
discretion. It does not have the legal or traditional
autonomy of institutions of higher learning. Protection from
political interference is non-existent. It can become an
instrument of the government or of unrepresentative but
noisy and influential pressure groups.
To such an institution is entrusted the task of promoting
the understanding of human rights in the community. Human
rights is a controversial subject. The meaning of human
rights is ideologically determined. The Human Rights
Commission, being an organ of the government under influence
of pressure groups cannot be expected to propagate anything
but the interpretations favoured by the government and
pressure groups.
Where rights are justiciable, their meaning can be
authoritatively established as propositions of law by the
process of litigation Judicial decisions are also subjected
to critical study in educational institutions, which thereby
promote further understanding of these rights in the
community. The education systems of democratic countries are
not wholly immune from political pressure. Nevertheless they
enjoy relative academic freedom resulting in debate and
dialogue on controversial questions. The Human Rights
Commission, on the other hand, has become a vehicle for the
dissemination of the ALP government's views on human rights.
Its lack of independence from government and pressure groups
makes objectivity difficult.
In a free society there can be no objection to the
propagation of particular ideological viewpoints. However,
the Commission is an institution funded from public revenue
and meant to serve the public and not sections of the
public. As such the conduct of ideological propaganda on
behalf of persons in government or pressure groups amounts
to defrauding the public. The provision of education is an
important function of modern government. But according to
democratic principle, the provision of resources and
facilities does not entitle a government to determine the
content of education. State controlled education amounts to
indoctrination - which is the hallmark of a totalitarian
society. The Human Rights Commission in its present form has
become an organ for indoctrination and thought control.
13.5 Indoctrination By The Commission
As part of its campaign to "educate" young children about
human rights the Commission recently published a book called
Teaching for Human Rights. The following passage is found in
the introduction, p 10:
Human rights are only claims. They are claims to particular
entitlements and nothing more. They are strong claims which
is why rights talk is strong talk, but there is nothing
about rights and responsibilities that is graven in granite.
Even where they are endorsed by national or international
laws, human rights derive their real strength from the
reasons given for them and if those reasons are not good
ones, then the claims for human rights can never be very
convincing either. What are 'good' reasons however? They are
reasons that argue the case for human rights from first
principles, like 'justice' and 'equity'. If students can
learn to do that, they will then be better placed to see the
point of meeting the rights claims others may make upon
themselves.
In this one passage, the Commission discloses its
controversial philosophy of human rights. The inspiration
for this philosophy is not difficult to find. The reader
will recall the assertion of Hermann Klenner, the marxist
philosopher that human rights "are neither eternal truths or
supreme values ... They are not valid everywhere nor for an
unlimited time"
. See quotation in chapter 2.1. Klenner's statement sets out the marxian approach to human rights
which is essentially one of relativism. It is this approach
that is adopted by the Commission to deny the existence of
human rights as rights. According to the Commission human
rights are merely claims, to be measured against vague and
subjective notions of "justice" and "equity". The classical
theory of human rights which is founded on a recognition of
the supreme value of individual freedom is discarded in
favour of a system of alterable and contingent "rights". A
claim to individual freedom is conceded only if it is just
and equitable. Justice and equity mean different things to
different people. Therefore the content of human rights will
depend on the will of those who are authorised to decide
what is just and equitable. As the Commission is the
official statutory body responsible for deciding the content
of human rights, the standards of justice and equity to be
applied would be its own.
From this theoretical foundation the Commission, in this
book, launches one of the most overtly political
indoctrination campaigns that could be bureaucratically
conceived. Let us look at the Commission's interpretation of
the right to life. It begins with the unavoidable references
to the Holocaust and Stalinist massacres which are
uncontroversial and admitted facts. Thereafter the writer
turns his attention to the free market democracies of the
world and states:
There has been mass assassination too, by more covert and
indirect means. The construction of a capitalist world
economy, predicated upon dishonesty and greed, has
slaughtered millions the world over through exploitation and
the mis-development of global resources. The United States
and the other erstwhile "free market" democracies have much
to answer for in this regard. op cit 66).
Thus capitalism, according to the Commission, is a genocidal
philosophy. The dishonesty and the irrationality of this
attack can be dismissed as the ranting of a frenzied
political extremist, if not for one serious implication of
the statement. The implication is that since capitalism
violates the right to life, any freedoms associated with it
can find no place in the system of rights recognised by the
Commission.
The book constitutes a systematic denigration of individual
freedom except to the extent that such freedoms are
necessary for the purpose of questioning and destabilizing
the present economic and social structures. On the other
hand it elevates welfare to the status of "fundamental
entitlements" op cit p 95. A double standard is involved in
the assertion of a "fundamental entitlement" since earlier
it had been argued that all rights were relative.
The indoctrination of Australian children is the object of
the book. It exhorts children to question established values
and to think and act towards the enthronement of the values
preferred by the Commission. The methods of indoctrination
suggested by the book range from the simple-minded to the
bizarre. Consider the following example of a student
activity designed to impart understanding of the freedom of
thought and conscience, and actually perpetrated on some
children:
'The next activity was "The Teacher's Coup d'etat". I went
out of the room briefly, re-emerged, slammed the door,
screamed out that there had been a teacher's take over and
that things were going to be different. I insisted on
marking each child's hand with an orange cross. I made the
children repeat ridiculous statements after me "because they
were the new truths": for example, "children are dirty
smelling creatures", "the world is flat", "worms are
delicious to eat" and so on. I insisted on silence and sent
out of the room anyone who disobeyed. When I sent Nga
outside (who "disobeyed" only because she speaks little
English) the class were shocked at my insensitivity. Some
children who didn't know whether or not to take me seriously
began "to be afraid". I called a stop.... The children
seemed relieved to be assured that it was only . . . an
activity. We discussed what had happened, why I had done it,
and how they had felt'. op cit pp 84-5.
The Commission's approval of the use of terror to inculcate
ideas is not surprising within the context of the book. The
book is preoccupied with the task of weaning children away
from parental values and influence. Obedience to parental
precepts and commands is a feature of a child's life. This
factor, coupled with love and respect makes parental
guidance the most powerful educational influence upon the
child. In order to wrest the child's loyalty away from the
parental value system it is necessary to portray parental
authority as an intolerable restraint on the freedom of
thought and conscience. It appears that one of the methods
by which the Commission hopes to accomplish this object is
by equating parental discipline to the acts of terror
perpetrated within the classroom. By methods such as these
it hopes to raise youth consciousness of parental
oppression.
These overt and covert attempts at indoctrination of
children are violations of Article 26(3) of the Universal
Declaration of Human Rights, which declares that "Parents
have a prior right to choose the kind of education that
shall be given to their children".
13.6 Policy-Making By The Commission
One of the functions of the Commission is to report to the
Minister as to the laws that should be made by the
Parliament or action that should be taken by the
Commonwealth on matters relating to human rights (Section
9(1)(c)). Its record thus far, in this respect, shows a
singular determination to pursue its own ideological ends in
disregard of objectivity and community concerns.
The suppression of the Moens Report on Affirmative Action
(described in chapter 9.7) reflected the Commission's
disrespect for scholarship and its intolerance of dissent.
The Moens investigation was commissioned out of public funds
as a part of the Commission's official investigation of an
important issue concerning human rights. The Commission had
the right to disagree in good faith with the findings and
the right to reject or modify the recommendations. But, the
public had the right to know the contents of the report and
the Commission's reasons for rejecting it. By suppressing
the report and its own deliberations and decisions thereon,
the Commission imposed a censorship on the disclosure of its
own affairs. By doing so the Commission not only showed its
contempt for administrative regularity but also violated the
spirit of the freedom of expression and its corollary, the
freedom of information - freedoms which the Commission is
bound to protect and propagate.
The value that the Commission attaches to freedom of
expression is again exposed in its proposals for the
amendment of the Racial Discrimination Act, which Professor
Chipman identifies as one of the most restrictive measures
contemplated since the Second World War. His comments on
this topic are contained in chapter 6.2. In a typically
Frankensteinian twist, the institution created to serve the
cause of human rights has become the destroyer.
NOTE: The activities of the Human Rights Commission receive
analysis in the other parts of this publication: 2.3, 2.5,
4.3, 6.2, 6.3, 6.4, 7.6, 7.8 and 9.2.