HREOC and BSA(OL) Bill

Except for the addition of this comment and changes to the layout and navigation links, the content of this page was last updated on 30 May 1999 at 8:30am.

HREOC and BSA(OL) Bill

Introduction

This page contains notes on the Human Rights and Equal Opportunity Commission. These notes were collected while considering asking the HREOC to investigate the Broadcasting Services Amendment (Online Services) Bill 1999 for breaches of Australia's internatinal responsibilities.

Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission is responsible for monitoring implementation of the International Covenant on Civil and Political Rights of which Australia is a signatory. [see http://www.hreoc.gov.au/cgi-bin/textonly.cgi/human_rights/index.html]

"The Human Rights and Equal Opportunity Commission Act covers complaints of breaches of human rights and discrimination under international instruments to which Australia is committed. The Act applies to the Commonwealth and its agencies where breaches of human rights are concerned, but has wider coverage for complaints of discrimination in employment or occupation. Complaints which cannot be resolved by conciliation do not proceed to hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for presentation to Parliament.

Complaints are made to the Commission through its central office, regional office and through state and territory anti-discrimination or equal opportunity agencies."

[See The Commission's complaint handling role.]

Complaints can be made to the Commision regarding Commonwealth legislation that "is inconsistent with or contrary to any human right". [See Human Rights and Equal Opportunity Commission Act 1986 - Section 20.] The Act refers to Commonwealth legislation as a practice - for explanation refer to Section 3 of the Act.

Making a complaint

The following notes are taken from How to lodge a complaint.

Anyone can make a complaint under the Human Rights and Equal Opportunity Commission Act.

"A complaint may also be made by one affected person on behalf of a group of people... This kind of complaint is a representative complaint or 'class action'.

If you are considering making such a complaint you should consider obtaining legal advice or making specific telephone enquiries to the Commission first."

The white pages and Contact information give the following contact details for the HREOC:

Level 8, Piccadilly Tower, 133 Castlereagh, Sydney NSW 2000
GPO Box 5218, Sydney NSW 1042
Phone: (02) 9284 9600
Complaints Infoline: 1300 656 419

Complaints have to be in writing but can not be made by e-mail. There is a form, but it does not have to be used. "A complaint can take the form of a simple letter to the Commission." The following details are required:

  • name, address and contact details of person making complaint
  • contact details for the person, people and/or the oganisation complaint is being made against
  • brief explanation of why the complaint is being made
  • description of what happened to the complainant, where it happened, when it happened and who was involved
  • explanation of how the situation has affected the complainant
  • a list of any people (and their details) who could help explain what happened
  • if there are letters, memos or other documents that are important they can be included with the complaint or they can be noted in the complaint so that they can be looked at later on if necessary
  • if the complaint is on behalf of another person, the name of the other person and the relationship the complainant has to him or her
  • some suggestion as to what a fair settlement of the complaint would be
  • state if a complaint has been made to another federal or state agency
  • state what other ways that have already been tried to resolve the complaint, if any

"Complaints under the Human Rights and Equal Opportunity Commission Act are not subject to public inquiry and court action. Rather the Human Rights Commissioner must decide whether there has been a breach of human rights or whether discrimination has occurred. The Commissioner can also make recommendations to address any damage suffered by the complainant.

If it is found that human rights have been breached or discrimination has occurred the Commissioner must report to the Federal Attorney-General. The Attorney-General must then present this report to Parliament. This process is obviously very serious and is also very public."

[see How to lodge a complaint.]

International Covenant on Civil and Political Rights

Article 19 of the International Covenant on Civil and Political Rights states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Regardless of frontiers

The GILC report Regardless Of Frontiers: Protecting The Human Right to Freedom of Expression on the Global Internet details why the above applies especially to the Internet.

IANAL, but the only reason given in Article 19 paragraph 3 for restriction that the Broadcasting Services Amendment (Online Services) Bill 1999 could be covered by is "For protection of ... morals". However as explained in the "regardless of frontiers" report mentioned above any such restriction has to be narrowly tailored. I don't think the Bill is narrowly tailored.

Australia and the Covenant

On ratifying the Covenant on 18 Dec 1972 13 Aug 1980 [see http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html] Australia made several reservations, including one that refered to Article 19.

However a footnote in http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html states the Australia withdrew reservations on several articles including those on Article 19 on 6 November 1984.

Article 41 Committee

Article 41 of the Covenant establishes a Committe to consider complaints by one signatory that another signatory is not fulfilling its obligations under the Covenant. Both signatories need to have recognised the competence of the committee. Australia did this on 28 January 1993.

"The Government of Australia declares that it recognizes, for and on behalf of Australia, the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the aforesaid Convention."

[see http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html]

The countries that have recognised the competence of the Committee are:

  • Algeria
  • Argentina
  • Australia
  • Austria
  • Belarus
  • Belgium
  • Bosnia and Herzegovina
  • Bulgaria
  • Canada
  • Chile
  • Congo
  • Croatia
  • Czech Republic
  • Denmark
  • Ecuador
  • Finland
  • Gambia
  • Germany
  • Guyana
  • Hungary
  • Iceland
  • Ireland
  • Italy
  • Liechtenstein
  • Luxembourg
  • Malta
  • Netherlands
  • New Zealand
  • Norway
  • Peru
  • Philippine
  • Poland
  • Korea
  • Russian Federation
  • Senegal
  • Slovakia
  • Slovenia
  • South Africa
  • Spain
  • Sri Lanka
  • Sweden
  • Switzerland
  • Tunisia
  • Ukraine
  • United Kingdom
  • United States
  • Zimbabwe

[see http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_4.html]

According to Regardless Of Frontiers no state has lodged a complaint against another.

Individual complaints - optional protocol

In 1976, an optional protocol went into force which enables private parties to file individual complaints against States Parties that have ratified the covenant. [19] The protocol is itself a treaty, and therefore binds the states that have ratified it. Complainants must exhaust domestic remedies first. Once a complaint has been admitted as properly drawn, the Committee brings the matter to the attention of the state involved, which has six months to respond. The Committee, after considering all the written communications on the matter, issues its "views." The Committee has no power to enforce its findings, but it does require States Parties to indicate in their periodic reports what measures they have taken to give effect to the Committee's recommendations. "In particular, the State Party should indicate what remedy it has afforded the author of the communication whose rights the Committee has found to have been violated." [20]

[see Regardless Of Frontiers.]

Australia acceded to the optional protocol on 25 Sep 1991 [see http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_5.html.]


Copyright © 1999 Dr Michael Baker
mbaker@pobox.com

Last updated 29 May 1999
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