13. The Human Rights Commission
From Human Rights In Australia by LJM Cooray (1985)


The Commission's Power

The Rights Which Concern The Commission

The Judicial Role Of The Commission

The Educational Role Of The Commission

Indoctrination By The Commission

Policy-Making By The Commission

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 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 theRacial 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.