Equal opportunity commissions were set up in the 1970s because governments accepted that people who lacked equality before the law, or who were marginalised or persecuted because of their race or sex (and later, disability), were not in a position to sue. As a resource for those who could afford to use them, courts were going way beyond their reach, and their confidence.
The new commissions gave the disadvantaged the right to make a complaint to an independent authority which could help the respondents understand the clearly established human right to equal opportunity. It would also establish the facts, and then facilitate confidential conciliation.
That way, attitudes could and did change, because the new Commissioners and their Boards had real powers. They could investigate, as well as protect people against victimisation, and insist on dispute resolution.
The Commission also had authority. The Commissioners could dismiss frivolous or misconceived complaints because they were the gatekeepers to the tribunals.
In 1978, airline boss Reg Ansett didn’t fancy employing the best qualified pilot because she was a woman (and he as a businessman didn’t want a girl flying him about). Deborah Wardley (pictured left) took him on through the Victorian Equal Opportunity Board. Ultimately she won in the Victorian Supreme Court, and the significance of well-toothed watchdogs became nationally and internationally appreciated.
Victoria was a leader in those days.
However the state's current Attorney General Robert Clark is no defender of the rights of the weak. Yesterday came the news that the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) members had resigned en masse, because he refused – after a three month delay – to accept their unanimous recommendation for their new Commissioner. He wants somebody else.
So much for the credibility of the new Commission.
In 2011 Clark gutted the Equal Opportunity Act by removing the autonomy of the Commissioner, who is now a public servant reporting to the Commission. This is the Board whose decisions he has now also dismissed. He also amended the Act so that the Commission must not only be answerable to the executive instead of the parliament, but also cannot instigate the investigation of complaints of systemic discrimination without the approval of the Victorian Civil and Administrative Tribunal (VCAT).
The Commission’s only ‘power’ is to ‘educate’ the public (Reg Ansett didn’t learn anything until his defence was dismissed). Those who submit ‘issues’ may enjoy the feeble opportunity of voluntary, hands-off mediation.
No longer does the Commissioner have the authority of the Act. The respondent no longer has to offer any explanation for the treatment that is the subject of the complaint. Nor is he or she obliged to participate in mediation. The aggrieved – either side - can bypass the Commission entirely. Those who perceive that they have been treated unfairly by a bully or bigot must establish their claims in the VCAT.
The vaunted power of the Commissioner to conduct investigations without a complaint in cases of apparent systemic discrimination was neutered by Mr Clark’s inserting a statutory obligation that the Commission obtain VCAT’s permissionham
An ‘equal opportunity and human rights’ commission that can be overridden by an Attorney General who states publicly that he does not ‘believe’ in the Victorian Charter of Human rights and Responsibilities lacks even symbolic value. The Victorian Equal Opportunity and Human Rights Commission is the only body with the responsibility to advise on how the charter should be interpreted in court cases. It also monitors its operations and reports to the Minister.
The Commission members have resigned, and rightly so. The Commission is a shell, a betrayal of the purposes of Rupert Hamer, the great Liberal Premier who set up the Equal Opportunity Board and appointed its first Commissioner. He established it in 1977 in the name of the conservative, liberal values of giving voice to the voiceless, justice for the marginalised, respect for the rule of law, and guidance on their civic responsibilities to employers, educators, service providers – and governments..
The Baillieu government has fulfilled the desire of the Kennett government when, in 1993, it acted to remove the autonomy and authority of the then Commissioner for Equal Opportunity.
I had drawn the public’s attention to the attack on the Equal Opportunity Office’s powers, by seeking an injunction to prevent Mr Kennett’s government from decommissioning all women’s prisons, and placing the women prisoners in the Jika Jika division of Pentridge Prison. There they would have been doubly confined within a unit described, after a fatal fire in it just five years earlier, as unfit for human habitation.
I did so because I had the power, vested in me by the Act and the then Equal Opportunity Board President Margaret Ritzkalla, to investigate allegations of discrimination made by women prisoners detained in a men’s prison, to report and to seek to resolve the issue by negotiation. My research showed that women detained with men in prisons designed for a single sex were not only discriminated against by such double detention but their health suffered, so badly that they tended to kill themselves.
I tried to resolve it as the Act then required, without success.
When I asked for the injunction – and told the people of Victoria that I had done so, and why – the people of Victoria spoke with one voice. They agreed that the plans were cruel. The projects were abandoned without the need for an injunction.
There was a price, which has come to be paid this week.
At about the same time, I had received complaints from Aboriginal students who had been excluded from secondary schooling after the closure of Northlands Secondary College. There they had achieved great success in education. Northlands then a unique learning environment for students who had experienced dispossession and exclusion and poverty. Aboriginal students throve and succeeded there because of its supportive environment, innovative and flexible teaching methods and its strong connections with students’ families and the local community.
The Kennett Government closed it down in order to save money, the same argument put for the closure of women’s jails. Mr Kennett publicly instructed me to reject the complaint because in his view there was no right to complain about the discriminatory effects of government decisions driven by economic policy.
There was no way to resolve this through conciliation either. But after the Board said it was indirectly discriminatory on the basis of race to set up an education system without a ‘Northlands Secondary College’ in it, the children went on to the Victorian Supreme Court to assert their right to complain and be heard. .
In a monumental decision brought down two years later, the Victorian Court of Appeal upheld the right of Aboriginal children, who had been deprived of equitable access to education by the one school that took their experiences properly into account, to enjoy the fruits of the decision in their favour. Meanwhile, the Kennett Government set up ‘koori’ colleges especially for Indigenous students. Unfortunately we know the result: a cohort of Northlands pupils was lost.
The VEOHRC is an empty shell, because of the conscious act of a man who ‘believes’ that human rights are a bad idea, and that their watchdog should be tamed. I hope that Mr Clark’s personal choice for Commissioner does not accept the accolade that he would bestow upon him. There is no honour in this position.
In 1993, a couple of weeks after I moved to prevent the closure of women’s prisons, I found myself made ‘redundant’ in the ‘restructure’ that was quickly announced. I have never regretted it. Sometimes a job is more important than the individual who holds it. But the other price was the rapid undoing of the powers of those administering the Act. It is now complete, and people of Victoria are the weaker for the ‘human rights watchdog’ that has been made a lapdog.
To those affected by this process – this interference with the ‘independent’ equal opportunity and human rights ‘commission’, this swatting down of the body meant to create democratic conversations about power, by the man responsible for the rule of law in Victoria – I say this: you have a role in the battle for our representative democracy. Take up that struggle.
Equal opportunity and anti-discrimination bodies have been attacked and undermined from the day they started. They were then, and are now, watchdogs on human rights and civil liberties that were accessible to ordinary people, respondents and complainants. We have watched these bodies decay, and high-profile litigation take their place. This is not the way to settle disagreements about respect, equality, justice, discrimination, or victimisation.
This is the way the watchdog ends: not with a bark, but a whimper.
Moira Rayner is a barrister and writer and former Victorian Equal Opportunity Commissioner.