Public hearing 18: The human rights of people with disability and making the Convention on the Rights of Persons with Disabilities a reality in Australian law, policies and practices, Virtual - Day 2

CHAIR:  Good morning, everybody.  I wish to commence by acknowledging the Gadigal people of the Eora Nation on whose traditional lands the Royal Commission is sitting today and to pay our respects to their Elders past, present and emerging.  I also pay our respects to all First Nations people who are following this hearing.

Yes, Ms Eastman.

MS EASTMAN:  Good morning, Commissioners, and good morning, everyone following the proceedings.

Can I start by dealing with the evidence from Professor Byrnes yesterday.  I said that I would deal with the tenders overnight.  There are two documents I wish to tender.  The first is the chapter in Law Making and Human Rights that Professor Byrnes authored.  It is the ‘Economic and Social Rights in the Australian Parliamentary Human Rights Scrutiny Process’.  Could you mark that chapter as Exhibit 18.11?

CHAIR:  Yes, that can be done.  Thank you.

EXHIBIT #18.11   CHAPTER FROM LAW MAKING AND HUMAN RIGHTS BY PROFESSOR ANDREW BYRNES

MS EASTMAN:  Could Professor Byrnes's curriculum vitae be marked Exhibit 18.12.

CHAIR:  That too can be done, thank you.

EXHIBIT #18.12   CURRICULUM VITAE OF PROFESSOR ANDREW BYRNES

MS EASTMAN:  Professor Byrnes mentioned his understanding that some advice provided to the Royal Commission would be tendered.  That is advice that Professor Byrnes provided in relation to article 24 of the CRPD.  It was in direct response to one of the background papers provided by the Australian Government, which was described as Background Paper Part 2.  We haven't asked Commonwealth in the preparation of these proceedings to be ready to respond to Professor Byrnes' report but we will be doing future hearings concerning article 24 and inclusive education.

Commissioners, what I have in mind is that we deal with the Commonwealth Part 2 Background Paper on article 24 at that occasion.  Likewise, we may need to bring Professor Byrnes back.  He may not wish to hear that but we may need to bring him back, so we can deal specifically with his advice.

CHAIR:  We would be very happy to welcome Professor Byrnes back.
 

MS EASTMAN:  I wanted to clarify that position in relation to the advice.

CHAIR:  Thank you.

MS EASTMAN:  As our first witnesses this morning, I am pleased to welcome Dr Helen Watchirs and Ms Karen Toohey.  We will examine the experience in the ACT of the ACT Human Rights Act.  I understand both Dr Watchirs and Ms Toohey have made their affirmation in the waiting room.

DR HELEN WATCHIRS, AFFIRMED

MS KAREN TOOHEY, AFFIRMED

CHAIR:  I thank you both, Dr Watchirs and Ms Toohey, for coming to the Royal Commission to give evidence.  We appreciate your assistance to the Royal Commission.  Just so you are aware     and you may already be aware     the three Commissioners sitting on this hearing are all in the Sydney hearing room on this occasion, Commissioner Alastair McEwin and Commissioner John Ryan are joining me in the Sydney hearing room.  Yes, Ms Eastman.

EXAMINATION BY MS EASTMAN

MS EASTMAN:  Dr Watchirs, you prepared a fairly detailed resume for the Royal Commission, setting out your extensive experience in the public sector and human rights, also your publications and various awards.  You hold a Doctorate of Philosophy from the Australian National University and your thesis topic was Measuring Legal Implementation of International Human Rights Norms in the Context of HIV/AIDS.  Is that right?

DR WATCHIRS:  That's correct, yes.

MS EASTMAN:  You are the President of the ACT Human Rights Commission and you also currently hold the role of Human Rights Commissioner?

DR WATCHIRS:  That's correct.

MS EASTMAN:  You have had this role with the ACT Human Rights Commission since the inception of the ACT Human Rights Act in 2004; is that right?

DR WATCHIRS:  Yes, that's right.

 
MS EASTMAN:  Would it be fair to say that if we need to know anything about the way in which the Human Rights Act in the ACT has worked in practice, you are the person we need to speak to?

DR WATCHIRS:  Oh, thank you.  Yes.

MS EASTMAN:  I turn now to Karen Toohey.  Commissioners, you have a copy of Ms Toohey's CV.  Ms Toohey, you are currently the Discrimination, Health Services, Disability and Community Services Commissioner in the ACT?

MS TOOHEY:  I am.

MS EASTMAN:  That role is part of the ACT Human Rights Commission?

MS TOOHEY:  It is.

MS EASTMAN:  Prior to taking up this role in 2016, you were the Deputy Commissioner of the Office of the Australian Information Commissioner between 2013 and 2016?

MS TOOHEY:  Yes, I was.

MS EASTMAN:  That is the Commonwealth agency concerned with privacy; is that right?

MS TOOHEY:  Yes.

MS EASTMAN:  And Freedom of Information?

MS TOOHEY:  And FOI, yes.

MS EASTMAN:  Before that, you were the Chief Executive Officer and for a time the Acting Commissioner of the Victorian Equal Opportunity and Human Rights Commission?

MS TOOHEY:  I was.

MS EASTMAN:  Your time at the Victorian Human Rights Commission coincided with the early stages of the Victorian Charter of Human Rights coming into operation and the responsibilities for the Victorian Commission in working with the Human Rights Charter; is that right?

MS TOOHEY:  Yes, it is.

MS EASTMAN:  So you have experience, if the Commissioners need to ask you, about the way in which Victoria has approached the dialogue model of human rights and the role of commissions such as the Victorian Commission in that process?
 

MS TOOHEY:  Yes, particularly, as you say, the interface between the Human Rights Charter or a Human Rights Act and discrimination law.

MS EASTMAN:  I want to keep on the journey of your experience with various Human Rights Commissions.  You are also a long term employee with the Australian Human Rights Commission.  One of your particular responsibilities for a time at the Australian Human Rights Commission was you had oversight of all the complaint handling in relation to the Disability Discrimination Act, is that right?

MS TOOHEY:  I did, for many years.

MS EASTMAN:  That meant that you had a very first hand bird's eye view of the sorts of complaints that were coming to the Australian Human Rights Commission, raising allegations that the Disability Discrimination Act had been breached?

MS TOOHEY:  Yes.  I started with the Commission early, with the first Disability Discrimination Commissioner, Ms Elizabeth Hastings, and so I oversaw the Disability Discrimination Act, certainly for its first 10 years of operation.

MS EASTMAN:  The nature of those complaints was not confined to just complaints about government bodies or the Australian Government, is that right?

MS TOOHEY:  No, the Discrimination Act, as you are aware, operates with the private sector, so certainly across business, education, accommodation, all those areas of public life, I have been managing those complaints for many years across all those sectors.

MS EASTMAN:  In your current role as the Discrimination, Health Services, Disability and Community Services Commissioner, you still have this frontline role in addressing complaints that come to the Commission?

MS TOOHEY:  I do.  I have a small team with a big jurisdiction.  I think, as I have outlined, we are fortunate to have expanded that jurisdiction to not just handle discrimination claims, but the ACT Government has recently enacted provisions to enable us to deal with abuse, neglect and exploitation of people with disability.  We still work in the disability services space.  I certainly deal with disability related matters in my health services role.  So I think, again, we have a broad remit and I have a very close eye on those matters.

MS EASTMAN:  The topics I want to ask you both about is to assist the Royal Commission to have an understanding about some models for the process of taking international human rights and bringing them into a domestic setting.  The ACT was the first jurisdiction to undertake that exercise, in the sense of looking at a package of international human rights and translating them into ACT law with the ACT Human Rights Act in 2004.

 
Dr Watchirs, can I start with you.  There was an interesting consultative process that led up to the enactment of the ACT Human Rights Act in 2004.  Am I right in understanding that the government established a Bill of Rights Consultative Committee?

DR WATCHIRS:  That's correct.  In 2002, the consultative committee was formed with the chair, Professor Hilary Charlesworth, who, you would know, was appointed to the International Court of Justice last Friday, Professor Larissa Behrendt from UTS, Elizabeth Kelly from the Justice and Community Safety Directorate, and Penelope Layland.

It operated for nine months, issued an Issues Paper, held town hall community meetings and had a deliberative poll at old Parliament House, similar to the republic model.  It issued a report in 2003 with a draft Human Rights Bill that covered both civil and political rights, as well as economic, social and cultural rights.

MS EASTMAN:  I want to ask you about the nature of the rights that were considered by the consultative committee.  There was clearly no debate about what are described as civil and political rights being considered for an ACT Bill of Rights.  There was no issue about civil and political rights, is that right?

DR WATCHIRS:  That's correct.  It was the norm in other jurisdictions, such as the UK, New Zealand, Canada and the US.

MS EASTMAN:  When we talk about civil and political rights, are we talking about some rights that might be described as freedoms?  We hear "rights" described as freedom of movement, freedom of assembly and freedom of expression.  They are part of civil and political rights, is that right?

DR WATCHIRS:  That's correct, and COVID has brought that into stark relief.  People during the consultative committee thought that a lot of our human rights came from American TV shows, whereas actually we have them in the ACT, Victoria and Queensland at the local level.

MS EASTMAN:  The nature of freedom comes from the theory that if you just leave the person alone, then they can enjoy their rights.  There is a theory that sits behind some of the rights described as freedoms that they do not really take much on the part of government to comply with because it is simply a matter of allowing people to exercise their freedoms.  Have you heard that description of some of the freedoms in the civil and political rights model?

DR WATCHIRS:  Sure.  The duty to respect, protect and fulfil, which encompasses the private sector as well and third parties.

MS EASTMAN:  The idea that civil and political rights can be achieved or complied with by simply doing very little has been debunked, hasn't it, at an international law level?
 

DR WATCHIRS:  Absolutely.

MS EASTMAN:  So even for civil and political rights, there is now an acceptance that that requires proactive action on the part of governments, if governments wish to comply with civil and political rights?

DR WATCHIRS:  Absolutely, and that has been taken seriously for a number of decades with discrimination legislation.  But there are a lot of other civil and political rights apart from the right to equality.

MS EASTMAN:  If we look at the other category of economic, social and cultural rights, is it right that their genesis really came from being the types of rights that really required active government intervention, the commitment of resources and the establishment of systems?  So these are rights like the right to work, the right to education, the right to the highest attainable standard of living, the right to health, rights of those kinds that might not be the types of rights that could be readily or easily enforced by courts.  Is that a fair description of economic, social and cultural rights at a very high level?

DR WATCHIRS:  Sure, and the reason they were split, as opposed to being combined with the universal declaration, was the Cold War between the USSR and western states parties.

MS EASTMAN:  Again, the more recent approach to human rights, probably for the last 20 years or so, has been that civil and political rights, economic, social and cultural rights, all fit together?  They are interrelated, indivisible and interdependent; that is the current approach at an international law level?

DR WATCHIRS:  Yes, that is absolutely correct.

MS EASTMAN:  Would you accept there have been some challenges in bringing that concept of indivisibility, interdependent, interrelated rights between civil and political, economic and social rights into Australia?  We still hold back a little bit in our domestic thinking of rights being split into civil and political, on the one hand, and economic, social and cultural, on the other hand?

DR WATCHIRS:  There is definitely a reluctance about economic, social and cultural rights.  There is that international test of progressive realisation, which means you have to have immediate effect for nondiscrimination.  But in terms of resources, that is something you progressively implement, you don't backslide, which is the principle we have been operating on.  Economic, social and cultural rights have been added progressively to the Human Rights Act but they weren't there in 2004.

MS EASTMAN:  In 2004, the consultative committee recommended that there be an ACT Bill of Rights that had both comprehensive protections for civil and political rights and also economic, social and cultural rights?
 

DR WATCHIRS:  Yes, their bill had both.

MS EASTMAN:  When the consultative committee presented its report to government, it was then for the ACT Government to decide what the form of the ACT Human Rights Act or Bill of Rights would look like; is that right?

DR WATCHIRS:  Yes.  They didn't agree with having economic, social and cultural rights, at the beginning.  There was a general review clause of one and five years and the Greens inserted an amendment to look at environmental and economic, social and cultural rights at a later stage.

MS EASTMAN:  So the ACT Act at the present time does have some rights we might broadly put in the basket of economic, social and cultural rights; is that right?

DR WATCHIRS:  Yes.  The right to education was introduced in 2009, I think, and the right to work in 2020.  We are still working on having the rights to housing and health as the two we would prioritise.

MS EASTMAN:  One of the other suggestions or recommendations from the consultative committee was to think about the nature of an effective remedy.  The concept of effective remedy appears in the international conventions such as the International Covenant on Civil and Political Rights.

Was it the case that the consultative committee thought one of the effective remedies should be the right to take a claim that breaches of the ACT Act could be enforceable by courts, so a process of having those rights subject to court oversight?

DR WATCHIRS:  Absolutely.

MS EASTMAN:  Can I put that in plain English.

DR WATCHIRS:  That was the UK model of having a direct right of action to the Supreme Court.  Unfortunately, that wasn't in the 2004 bill that the government introduced and was passed in 2004.  But the 2006 review recommended that be included and in 2009 it did become law that we had a direct right of action.  That doesn't exist in either Victoria or Queensland.

MS EASTMAN:  Does the concept of direct right of action also include the powers for a court to award particular remedies, either changes in policies and practices or damages, if there has been a breach of rights?

DR WATCHIRS:  Sure.  There are a range of remedies, a declaration being probably the main one.  But damages are not available, except in very limited circumstances.

MS EASTMAN:  Has the lack of damages for breaches of rights been an impediment in the ACT, in terms of rights protection?
 

DR WATCHIRS:  I think it has contributed to a reluctance of the profession, and perhaps even academics, bringing actions in the Supreme Court.  There has probably been more activity at a lower level, in terms of NGOs and community legal centres, and across our own complaints work and other case work, where we integrate human rights in our decision making.

MS EASTMAN:  I want to ask Ms Toohey shortly about whether other mechanisms for making complaints about human rights, for example in a discrimination law framework, might be another pathway to remedies.

Before I do that, can I finish off with the steps to introducing the ACT Human Rights Act.  The committee looked at a range of models from our jurisdictions     the US, UK, Canada and also South Africa     but the decision was made to proceed with the model reflecting the model in the UK, being a model that is commonly called a dialogue model.  Is that the approach the ACT took?

DR WATCHIRS:  Yes.  It's an ordinary Act of Parliament, like the UK, and the dialogue model is felt to uphold the rule of law by having dialogue between the three arms of the Westminster system.

MS EASTMAN:  When we talk about the three arms of the Westminster system or the three arms of government, we are talking about the Parliament     in the ACT's case, the legislative assembly     we are talking about the judiciary and the courts system, and we are talking about the public services, sometimes referred to as the Executive.  They are the three branches?

DR WATCHIRS:  Yes, they are the three.

MS EASTMAN:  Is the Human Rights Commission part of the Executive or the public services or does the ACT Human Rights Commission fit into that dialogue model in a slightly different way?

DR WATCHIRS:  I would say we fit into the model in a slightly different way.  We certainly engage with the legislative assembly and there is a power to intervene in court cases, but a lot of the dialogue happens within the Executive.  We are independent statutory office holders, so we are independent of government, but we do see draft Cabinet submissions.  So that is the process for any policy and law making before it gets to the legislative assembly and that is probably where we have our greatest input, but it is not seen because of that process being confidential.

MS EASTMAN:  I want to ask you now about what has been the experience in the ACT working with a dialogue model and to draw on both your experience in this exercise of translating international rights into a local setting in the ACT.

I will start with the rights and I open this up for both of you.  Can we look at the ACT Human Rights Act.  The Commissioners have a copy in the bundle, and I won't go  
through every right.  The language used in the ACT Act in part takes the language from the international conventions, particularly the International Covenant on Civil and Political Rights, and brings that into the ACT law.

So the first thing is: how has the ACT addressed this exercise of taking international law concepts, which we heard yesterday can sometimes be vague and aspirational in their terms, to actually give it some meaning in the ACT?  This is an area that both of you work with, in terms of working with the Act in the roles you have in reviewing material, giving advice to government and conducting your own inquiries.  How do you go about that exercise of working out the meaning of the rights in the ACT Human Rights Act?

DR WATCHIRS:  The value of using the international treaties is that means we have access to jurisprudence, both at the international level of the Human Rights Committee, but also regional systems such as the UK participates in the European Court of Human Rights.

At the local level, that is translated by having obligations in each arm of the Westminster system.  So in terms of the legislature, the Attorney General must issue a compatibility statement for all government bills.  That is a filter for checking whether limitations are proportionate under section 28.

The Scrutiny of Bills Committee has a role looking at pre enactment scrutiny.  There has been a lot of activity, as you will see in a report we did called Look Who's Talking in 2014, showing there has been a lot more action    

MS EASTMAN:  Can I just stop you there because I want to ask you specifically about each arm of government and its responsibilities and how parliamentary scrutiny operates in the ACT.  But the starting point has to be, doesn't it, how do you work out the meaning of the rights?  It doesn't matter whether you are in the parliament, in the courts, in the executive, in the ACT Human Rights Commission; if you have these human rights in the Act, you have to work out what they mean.  I am interested, from the Commission's perspective, how do you work out the meaning of these rights for the ACT?

DR WATCHIRS:  The international covenants are a starting point but the case law and general comments like the Human Rights Committee, where we look to, to give substance to how that is implemented in practice.  My colleague Commissioner Toohey may wish to add more.

MS TOOHEY:  I think that is a complex process and that is one of the issues we deal with on an ongoing basis in the jurisdictions that have a Human Rights Act.  There is a very small number of people who understand the international law, the international conventions and the extent of the interpretation of those provisions.

Part of it, where discrimination law comes into it, it is a vehicle to move the translation of those laws and the case law into day to day parlance.  That is not an  
easy job.  Having spent over 20 years trying to do that with business, small business, educators, service providers, I think the more we can do to provide vehicles for people to understand that human rights is not out there somewhere in this tower of ideology, it's actually about day to day events, day to day barriers that people experience, the more we will be able to create a safe and inclusive community.

We have some excellent expertise in the Commission here that is able to do that and stays across the international case law.  Certainly all the Commissioners do, but that is a very small pool of people.  One of the challenges is how do we move the very meaningful work that is done at an international level and through the conventions into day to day legislation or day to day communications that everyone finds accessible.

CHAIR:  I'm sorry to interrupt but can I ask a question about that?

MS TOOHEY:  Sure.

CHAIR:  You have referred to international law and practice and expertise.  How does that help you, for example, in relation to section 16(2):

Everyone has the right to freedom of expression.  This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders ....

And so on.  As you know, the conflict between freedom of expression and other rights is endemic and pervasive in Australia.  How does international law and expertise help you work out whether ACT law infringes section 16(2), such as the law of defamation?

DR WATCHIRS:  An interesting example of this in practice was the Federal Government's push to claw back anti vilification legislation, not just at the federal level but also at local level.  We worked with the community to show the impact racial vilification had on an everyday basis and backed that up with international jurisprudence.  That clawing back of the legislation did not happen but I am worried it is still on the horizon, if there was some kind of consolidation and lowest common denominator with anti-discrimination within Australia.

MS EASTMAN:  Is it sometimes difficult, when the rights are expressed at that very high and general level in the Act, to actually work out exactly when and how they might apply?  Has that been a challenge in the ACT in terms of understanding the content of the rights?

DR WATCHIRS:  Certainly in the beginning it was a difficulty, but just the process of scrutinising new laws shows it can happen in practice.  That has been something that has developed in the legislature which particularly the opposition, which initially wanted to repeal the Human Rights Act, now use it on an everyday basis to criticise government action or inaction.
 

Going through clause by clause in new legislation or amendments to old legislation to see if that complies with the standards in the Human Rights Act, using general comments, using case law, at the international level and also now there is more jurisprudence in Victoria and more jurisprudence starting in Queensland, which actually gives teeth and substance to showing what the content of those rights are, in practice, by the government regulating everyday things.  COVID legislation is a good example.

MS EASTMAN:  The Act itself, I think in section 31, places a focus on international law and the judgments of foreign and international courts and tribunals as being relevant to a human right, when interpreting that human right for the purpose of the ACT and the ACT Act.  So has the experience in the ACT been one of looking to international law or overseas jurisprudence?  By jurisprudence we mean court cases and outcomes of court decisions?

DR WATCHIRS:  Definitely.  Absolutely, looking at that jurisprudence either at the high level, like general comments of UN committees or case law in jurisdictions like the UK, New Zealand or Canada.  Where it is most highlighted is if we seek leave to intervene in a matter.  There have been about 20 cases in the Supreme Court, and the ACT Administrative Appeals Tribunal is     the local profession doesn't have access to that jurisprudence, so if we intervene, we are able to plug that gap in, and that gives confidence to the parties and we assist the court in making a determination.

MS EASTMAN:  One of the questions for interpreting the laws is and when and how there might be any limits on the rights.  Some of the rights in the ACT Act have in built limitations, but there is also a broad limitation clause in the ACT Act.  The Act says that human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.  Then there is a list of factors that are taken into account.

Ms Toohey, in the work you do, do you have to look at a right and a limitation together?  You might speak of this also from your experience in Victoria about these broad limitation clauses and how they sit with an understanding of rights?

MS TOOHEY:  Yes, we certainly do have to look at those together.  Again, sometimes that's part of that translation process of understanding the right and how it is limited but also why it is limited.

We have seen, certainly over the development of the jurisprudence in Victoria and in the ACT, particularly more recently, a much more mature approach to that consideration.  As we know, certainly initially in Victoria the experience with the courts was a complex conversation, if I can put it that way.  That has matured as the legislation has been used more and more frequently and as there has been a greater acceptance of reference to international jurisprudence.

Certainly in my day to day dealings, dealing with housing or dealing with education,  
trying to articulate how the rights and the limitations sit together can be difficult.  Again, if we move to how that looks in discrimination law, looking at unjustifiable hardship and how that fits against a right and how the assessment of that has again evolved over many years, what we understand is that some of the concrete ways that discrimination law expresses those provisions has not been sufficiently referenced back to the original right and limitation.

As you say, there is an emerging maturity in that space but it is still developing.  We certainly need agencies like the ACT Human Rights Commission and the Victorian Commission to continue to act in that intervention space to develop that case law.

MS EASTMAN:  I want to turn then to the three arms of government and the experience in the ACT.  I am interested to know what has worked well but also if there have been any challenges or impediments in this model.

First, let's deal with the scrutiny.  When the Attorney General is required to present a bill to the legislative assembly, it is the Attorney General's role to prepare a written statement, called a compatibility statement.  The Attorney General has to express an opinion as to whether the bill is consistent with human rights.  But if it is not consistent with the human rights in the ACT Act, the Attorney General also has to say why that is the case.  So that compatibility statement is an important first step; is that right?

DR WATCHIRS:  It's an absolute filter.  In over 17 years of the Human Rights Act, there have not been incompatible bills that have got to that stage.  There have, of course, been early drafts that we have said are incompatible and they have been changed by the Executive.  Whereas if you look in Victoria, there have been four bills expressly acknowledged as incompatible, in 2016, 2015 and 2017, and they have an override declaration where an individual serving a life sentence has been not compatible with human rights, and that is done expressly.  We don't have an override provision in the ACT.

MS EASTMAN:  But the objective of the compatibility statement is before a law even makes its way into the system of the members of the legislative assembly considering the law, let's check that the proposed law is going to be compatible or consistent with human rights.  That's the purpose of the compatibility statement?

DR WATCHIRS:  Yes, and it is centralised through the Attorney General.  In other jurisdictions it is the minister responsible and there are different theories about which way is preferable.

I have found in the ACT, having it centralised, particularly with the initial Attorney General being the Chief Minister Jon Stanhope, who sponsored the Human Rights Act, that wayward directorates were more likely to buckle under when they knew that assessment may be missing, if they didn't take the advice on compatibility early.

 
MS EASTMAN:  The process of the compatibility statement and then the role of a standing committee that addresses human rights when bills are presented, you have written about this in the book on Law Making and Human Rights.  We have supplied for the Commissioners your chapter on the experience of the ACT parliamentary scrutiny.  Has this been one of the successes of the ACT Human Rights Act?

DR WATCHIRS:  I think the success definitely has been in the legislature and the Executive.  The Look Who's Talking report we did in 2014 showed in seven bills there had been 100 government amendments loosely attributed to scrutiny of human rights.  But in the three years since, there have been 30 amendments to seven bills.  So that was the high water mark of where the government did changes according to scrutiny committee reports.

In Victoria, there have been eight amendments in eight years, so it is a very different impact, compared to the ACT.

MS EASTMAN:  Turning to the next arm of government, which is the Executive or the public sector.  In the ACT, it is referred to as obligations on public authorities.  The public authorities are quite broad in the ACT.  It is not just public servants, it is also a minister, it may be a police officer or any entity whose functions include functions of a public nature, when exercising those functions for the territory or a public authority, whether under contract or not.

Can I ask you there, does that start to build the concept of public authority around performing a public function, rather than simply the status of being a public entity?  Does that make sense?

DR WATCHIRS:  Yes.  It has meant that the functionality test means it's much broader than other jurisdictions and that has brought in community housing providers.  There have been ACAT decisions showing they are public authorities and that means they are operating on that human rights basis, rather than a charity basis.

MS EASTMAN:  The ACT Act describes a function of a public nature to include the operation of detention places and correctional centres, but also the provision of some core services such as gas, electricity, water supply, emergency services, public health, public education, transport and housing.  That sounds very much like the economic, social and cultural rights framework, Ms Toohey?

MS TOOHEY:  It does sound very much like the ESC rights.  Again, it is certainly one of the things I have seen in the ACT, that the breadth of that public authority obligation assists us greatly in dealing with our complaints.  So when we have a discrimination complaint or a vulnerable person complaint against one of those providers, it also means we can raise it with them and ask them to explain how they have taken into account their public authority obligations and what considerations they have given to human rights in making their decisions.

MS EASTMAN:  One of the steps taken in the ACT when the Act first came into  
operation was to say: we have to do more than just have the law, we also have to build the culture and build awareness and education for the public authorities to know and understand their obligations.  What has been the ACT's experience in terms of the awareness of rights and an understanding of rights in public authorities?  Dr Watchirs, maybe you can comment on that one.

DR WATCHIRS:  Sure.  I think there has been a big change and maturing over time of awareness of human rights.  But in terms of commitment, that has been the one that takes the longest to develop.  To me, that's demonstrated by the amount of resources devoted to human rights.  I would have to say that would be the biggest challenge the ACT faces.

There have been only two lawyers in my team for the last 17 years doing all that work of auditing places of detention, the intervention work in courts and tribunals, and looking at draft Cabinet submissions and making submissions to legislative assembly committees such as the recent one on COVID.

MS TOOHEY:  If I can add, the other element of that is remembering that it is constant maintenance.  You can't have that discussion once with organisations, it has to be a constant conversation with them.  Particularly in organisations like housing or health, where it's not the first thing staff think of when they are making decisions.  So how do we get it to be a framework they turn to when they are making decision about people's rights?

I think it's really important just to remember there is that need for a constant maintenance in that space, not just a one off conversation or training at induction or something like that.

MS EASTMAN:  The Act says it is unlawful for a public authority to act in a way that is incompatible with human rights and in making a decision to fail to give proper consideration of a relevant human right.  Surely, that must be some motivation for a public authority to know they would be acting unlawfully if they didn't act compatibly with human rights?  Doesn't that demand that there is a high level of knowledge and understanding of the rights in the ACT Act?

MS TOOHEY:  It demands it.  But I think one of the issues we have there is obviously the remedy.  So I think, while that may be common knowledge at a senior level, again, many decisions in the public service are made by frontline staff on a day to day basis with limited resources.  So I very much agree that there is an obligation there.  I think one of the things     and Dr Watchirs has certainly been advocating for a human rights complaint mechanism, so we have better accountability mechanisms.

DR WATCHIRS:  Yes.  It's really the consequences of non-compliance that motivates public authorities.  If they know they will be taken to the Supreme Court, which is more likely to happen in a prison situation where there's     that is the most serious limitation on human rights, detaining someone 24 hours a day.  And police,  
although it is a contract between ACT Police and Federal Police, so they are not subject to the Discrimination Act but they are an express public authority.  We have intervened in a number of police cases but they have all settled, so we don't have express case law on that in the ACT.

An interesting study was the Auditor General's in 2019 of implementation of the Human Rights Act.  It found gaps in the Justice Department, particularly in the community correction space, about implementing human rights on an everyday level, in terms of training and access to materials.  So that's something that has been worked on in the last two years and there will be online training.  There are new fact sheets that have been issued by the Justice directorate. 

The other change has been that last year the ACT adopted a wellbeing framework, based on the New Zealand model.  There are 12 domains with 100 measures and 56 indicators.  The University of Canberra conducts a "Living Well in the ACT" survey every two years and human rights are incorporated in that survey.  But there is a need to refine that methodology and compare data over time.  It was only 4,000 people, the last survey that was recently conducted.

So that's one way to assess compliance in terms of what people's knowledge of human rights are and how they are experienced on an everyday basis, particularly vulnerable people, including people with disability and Aboriginal and Torres Strait Islander people.

CHAIR:  What sorts of cases has the Commission intervened in?  You mentioned a number of cases involving the police.  What sort of cases?  I don't mean each of them individually, but are they cases that involved proceedings under the Act or are they other sorts of cases?

DR WATCHIRS:  They are other cases not brought under the Human Rights Act that we have intervened in.  One was in relation to police assaulting young people on Australia Day in 2017, but that case settled.

Another case, Thompson v Andrews, settled in the High Court.  That was a breach of bail and the power of police to enter premises without an express legislative provision.  We lost that case in the Supreme Court of Appeal, so Legal Aid took it to the High Court and that case was settled so.  I take that as an indicator it may have won in the High Court is why it settled.

Also, confiscation of criminal assets where there has been a family home and children living in that home, where we have intervened in those cases, have similarly settled.

CHAIR:  Have there been any cases in which the Supreme Court has been asked to give relief under section 40C(4), which provides that in a proceeding of a particular kind, the Supreme Court may grant the relief it considers appropriate, except damages?
 

DR WATCHIRS:  Sure.  The most famous case is one of Eastman, where $7 million was awarded for an unlawful conviction.  There have been other cases about    

CHAIR:  There is a specific provision that allows for compensation in the event of an unlawful conviction?

DR WATCHIRS:  That's correct, an unlawful detention, but otherwise damages is not available.  We intervened in a case called Morro & Ahadizad, where it was only common law damages that were available in that case.

CHAIR:  Just as a matter of interest, section 40C(4) only removes damages from the range of relief that a court may grant.  I would have thought the Supreme Court, pursuant to that section, could grant all manner of relief that might be appropriate.

DR WATCHIRS:  Absolutely, it is very flexible, and there have been a number of declarations.  The most recent case is one of Davidson v Director General of the Justice and Community Safety Directorate just this year, where a detainee developed mental health issues by not having access to the legislated one hour a day of open air and exercise.  He was given access to a small cell at the back of his cell, rather than a general exercise yard that was provided.

CHAIR:  The relief was in the nature of a mandatory injunction or something like that?

DR WATCHIRS:  Yes, it was found that the action was unlawful of the prison.

CHAIR:  I had better stop or Ms Eastman will get angry with me for interfering in the judicial side of things.

MS EASTMAN:  Well, I was up to that part, in terms of if there is an allegation that a public authority has engaged in conduct that would be unlawful because it has acted in a way incompatible with human rights or failed to give proper consideration, the question of determining unlawfulness brings in the third arm from the dialogue model, which is the role of the court.  It is right, isn't it, that the ACT has given that role to the ACT Supreme Court, not to the Magistrates' Court, not to other lower level tribunals?

DR WATCHIRS:  That's correct.  There is an open question about how much it binds lower courts in making findings about human rights.  We did intervene in a case before the Supreme Court called LM in the Children's Court in 2014 on that issue and we have recommended that be made clear in the legislation, so that it can be applied in the more everyday cases.

But as we said earlier, a complaints mechanism would be much more accessible and effective than requiring people to go to the Supreme Court, or to add on human rights to existing causes of action in ACAT and the Magistrates' Court.
 

MS EASTMAN:  The nature of the Supreme Court's role seems to be to determine whether as a matter of fact there has been incompatible action with human rights, but also a review function, to look at the way in which a decision has been made and to determine whether there has been proper consideration.

In those two functions, how strong has the Supreme Court been in addressing human rights in the ACT?  Does it sit in the same way as the experience in the legislative assembly or in the way the Executive perform their duties with human rights?  How is the court fitting into that?

DR WATCHIRS:  No, definitely the court has been the last player to engage.  I think some of the difficulty is that inaccessibility of international jurisprudence on human rights which means we usually use interstate counsel to argue cases when we intervene.  So there have been over 300 cases, I think about 320, where the Human Rights Act has been mentioned in the Supreme Court or Court of Appeal.  But, as I said, there have been only about 20 cases where we have intervened where it has been a determinative issue.

MS EASTMAN:  There is another role, isn't there, for courts and tribunals and the justice system in relation to this Act, and that comes back to the question of interpretation.  The Act requires anybody who is working with territory laws to interpret, as far as it is possible to do so and consistently with the purpose of a territory law, in a way that is compatible with human rights.  Is that something you see happening regularly across courts and tribunals?

DR WATCHIRS:  Certainly.  But, as I said, it's probably more common in the Executive and the legislative assembly that that i an interpretive obligation.  In the initial 2004 Human Rights Act, that is all there was.  There wasn't a direct right of action until 2009, so that did embed the interpretive provision that was the main mechanism of the Act.

MS EASTMAN:  Is the jurisprudence from the courts and tribunals something that assists in your work in interpreting human rights for the ACT?  Does it inform the legislative assembly's role and/or the broader executive and public authorities?  Have the courts had a force in that?  Do they help?

DR WATCHIRS:  The courts definitely help and it makes a difference in an individual case.  Then, of course, there is the normative effect of similar cases that could be brought, that the executive will then take that into account.

The example I gave of the case of Davidson, where detainees were only allowed in the back of their cells for an hour's exercise every day, that was changed to these people have been taken on discipline to an open exercise yard, as that is a requirement in the Corrections Act.

To not follow that is a breach of human rights.  At international law, that is a  
commonly recognised right of having one hour of outdoor exercise and fresh air.

MS EASTMAN:  The Convention on the Rights of Persons with Disabilities came after the ACT Act and the ACT Act doesn't make any express reference to the rights of people with disability in the Human Rights Act.  Does the ACT Act do anything in terms of bringing the CRPD rights into the ACT?

DR WATCHIRS:  I think more so at the     less at the Supreme Court level and more at the ACAT level.  We have intervened in a number of guardianship cases that looks at what the test is for incapacity, a number of mental health matters, housing, planning, and discrimination cases.  But Commissioner Toohey may wish to expand on that.

MS EASTMAN:  Ms Toohey, is it the case that when we look at a discrete cohort of people with disability and some of those broader economic, social and cultural rights, the Human Rights Act works, and needs to work, with other discrimination legislation and the legislation for which you have responsibility?

MS TOOHEY:  Yes.  Certainly in terms of, as Helen says, as Dr Watchirs has indicated, the right to equality and some of those other rights, we certainly use those in negotiations with, for example, housing providers, health providers, in looking at the discrimination provisions around people with disability.

I would have to say that it's a     while the CRPD, as you say, came later, it is certainly a point of reference for us in terms of being able to articulate what the right to equality looks like, for example, for people with disability.  When we were looking at the amendments to the legislation to enable us to take complaints around abuse, neglect and exploitation of people with disability, it was certainly one of the discussion points then.

So while it is being interpreted through the lens of the other rights, it is certainly part of the ongoing conversation that we have in using it to articulate what the Discrimination Act means or what some of these other provisions that we have mean.

MS EASTMAN:  I am conscious of the time.  The Commissioners may have some questions for you.  Our focus in the Royal Commission is not that whole suite of human rights, our focus is on the rights of people with disability who have to be guided by the CRPD, and our focus is on violence, abuse, neglect and exploitation of human rights.

Reflecting on the ACT's experience of the Human Rights Act, is this a law that is effective in guaranteeing the rights of people with disability to live free from violence, abuse, neglect and exploitation?  I don't know who wants to take that first.

DR WATCHIRS:  I think it has had some impact but not so much in the courts.  Therefore, we have been on a campaign to introduce a complaints mechanism that is in the 2019 Queensland Act and has shown that it works.  A lot of those complaints  
are taken in parallel with the discrimination complaint.

In the ACT, that would work at a much deeper level, given the breadth of Ms Toohey's jurisdiction, particularly for vulnerable people being exposed to exploitation, neglect and abuse.

Law can't be a magic bullet for fixing complex social problems but having a complaints mechanism would reduce that energy and resources and expense of having Supreme Court litigation, which is out of reach to vulnerable people and I would have thought even more out of reach to people with disability, having lower economic, social and cultural rights in terms of education, work and housing.  So their vulnerability, to lift them up, I think a complaints mechanism     currently it's, of course, Australia wide that it's the most ground of discrimination compared to any other cohort.  So having a Human Rights Act mechanism, I think, would amplify that.  Thank you.

MS TOOHEY:  I agree with Dr Watchirs' comments that the law isn't the be all and end all in terms of resolving some of these complex issues.  The ACT has made a good effort in giving us a breadth of jurisdiction that enables us to go into lots of parts of people's lives that in some other jurisdictions our sort of organisation doesn't have that remit.

One of the other things it enables us to do is reframe a lot of those issues as human rights issues.  Particularly in that space of abuse, neglect and exploitation, it has given us a vehicle to deal with providers, to deal with families, to deal with service providers, education providers, again to reframe some of the behaviours we see or some of the actions we see into abuse or neglect.

For example, if my house is inaccessible or my bathroom is inaccessible, we are getting to a point now where we can say, well, if the modifications are not made within a period of time, that might actually be abuse or neglect.  So it is giving us a vehicle to deal with some of those issues.

We would certainly like to see better remedies, so pathways to enforcement, in particular.  But as I said, the ACT has made a strong claim on using the law to the extent that we can and then giving us the vehicle to be able to talk to a whole range of other people in community about what the law means for them on a day to day basis.

MS EASTMAN:  Commissioners?

CHAIR:  Commissioner Ryan, do you have any questions?

QUESTIONS BY THE COMMISSION

 
COMMISSIONER RYAN:  I am convinced you have made an impact in the areas that lawyers like to congregate on, in the areas of justice and amending legislation and things of that kind.

CHAIR:  Commissioner Ryan is only speaking for himself when he refers to congregating.

COMMISSIONER RYAN:  I am really interested in the sort of ubiquitous human rights that the Commission regularly has presented to us in submissions and other things, like the right to keep my child in a school that I am happy with, the right not to be suspended from school because of my disability, the right, for example, with restrictive practice in a group home.  Have you been able to use this dialogue method to have an impact on those areas?  I notice a lot of the opportunities to intervene in those areas are complaints based, so are you able to publish what you do in a way that enables the community to learn from what you do?  I know that's two questions but I am interested in     as I said, the matters that come to the Commission are incredibly everyday and I am interested to see how that system you have been talking about might intervene in much more ordinary parts of people's lives.

MS TOOHEY:  Certainly both in restrictive practices and education, they are a significant component of the work I do, both from a discrimination perspective and also a Disability Services Commissioner perspective.

The Commission, again, has been able to inform other parts of the ACT Government, for example in the restrictive practice space.  As a result of some work the Commission did earlier in the education area, a senior practitioner was established.  That has a very practical day to day impact for people in terms of their day to day lives.  Because the human rights framework applies at that scrutiny level when those other parts of government are developing policy or law, we are able to bring those issues right to the fore in those discussions.

Again, with things around suspension and exclusion, we are working with the education directorate at the moment on expanding their reporting mechanisms into the private sector, to articulate those sorts of issues.

So while the legislative process and the court process is one thing, we very much use the complaint mechanism and what we call the reporting mechanism, so people raising issues with us that they don't necessarily want to bring a complaint about but they do want us to do something about it.  So we have very broad own motion investigation powers, we have quite broad inquiry powers, we are able to make public recommendations and then follow those through in the public domain.  So we have a very broad remit of powers and functions that enable us to both deal with individual complaints in a confidential manner, when required, but also to do that more systemic work which is so incredibly important.

CHAIR:  Commissioner McEwin.

 
COMMISSIONER McEWIN:  Thank you, Chair.  I have two parts to this issue.  The first one is, as Ms Eastman pointed out, the CRPD came after the ACT Act.  Given that the CRPD was developed in response to the lack of references or very little references to disability in previous human rights treaties, do you think the ACT Act, because it came after, could have been strengthened on the basis of the CRPD?  Do you have a view on that?  My question is to both of you.

DR WATCHIRS:  Certainly there could be a mechanism to have it as an appendix to the Human Rights Act, but I think we have that general provision of interpreting human rights under section 31 and we do routinely refer to the Convention that way.  But in terms of more awareness of the Treaty, then I don't think that is a bad thing.

I think probably where we are focused on is the complaints mechanism.  There is currently a petition before parliament that closes this week that will look at a complaints mechanism, that will go to a scrutiny committee to see whether that is taken up as a law reform issue.

Also the economic, cultural and social rights, because it is there that is the biggest gap for people with disability.  It is not just having work and education but also having housing and health incorporated in the Human Rights Act.  The right to health is in, although in a limited form, the Queensland Act, so there is a precedent for having it and I think that would make a practical difference on the ground.

Can I refer to Commissioner Toohey.

MS TOOHEY:  Yes, I completely agree the Convention came after but because the Human Rights Act is fairly flexible, we are able to use the CRPD on a day to day basis, in terms of how we look at disability discrimination claims.  In the same way the Disability Discrimination Act predated the Convention, the two interface in a way that allows you to use the Convention to interpret what you are doing and what you are looking for in terms of the Discrimination Act.

The difficulty comes, as you know Commissioner, when it gets to court.  So there is a whole piece of judicial education that we need to do in that interpretation space, with some of the new conventions and the expectations they set.

DR WATCHIRS:  One thing I didn't mention was the Disability Justice Strategy that came out last year.  That is something we have been fighting for, for over five or six years.  Having people whose job it is to do it on a daily basis in the police force, in the courts, in Corrections, in DPP and even in the Human Rights Commission in the victims area, means that is what brings human rights home, by having the resources to actually implement it in practice, with express reference to the Convention on the Rights of Persons with Disabilities.

COMMISSIONER McEWIN:  Thank you.  One final comment, and it relates to the dialogue approach we talked about earlier, that is, do you think again the lack of disability rights being embedded in human rights treaties prior to the CRPD has had  
an impact on the level of awareness and conversations that you have with the ACT Government about building in disability rights into that broader human rights conversation and progressing the human rights in the ACT?

DR WATCHIRS:  I think it's not an issue at the high level.  I think there is very high awareness by ministers and directorates.  It's really the frontline people making decisions, particularly functional public authorities, where it may be a housing provider or a private school having public authority obligations.

Can I refer to Commissioner Toohey about how that happens in practice?

MS TOOHEY:  Again, as Dr Watchirs has indicated, there is a very high level of awareness of issues around inclusion and diversity, particularly around people with disability in the ACT.  We have a very active Office for Disability, which has responsibility for implementing the Disability Justice Strategy that Dr Watchirs mentioned.

There is always room to improve.  For example, the ACT is looking at a multicultural recognition Act at the moment, which is very much about expressing the positive obligation on government and the private sector in the multicultural space and to articulate the fair and inclusive community messaging the government wants.

That will interact with the Discrimination Act, but it doesn't displace it.  I think those sorts of models are something that could be looked at, in terms of how do we articulate and express what is in the CRPD in a way that speaks to all of the community, but doesn't seek to displace something like a Discrimination Act, which provides the mechanism for redress or remedy.

COMMISSIONER McEWIN:  Thank you both.  Thank you, Chair.

DR WATCHIRS:  You might be aware, the Discrimination Act is being reviewed at the moment.  There was a Law Reform Advisory Council report done in 2015 and the first part was implemented but not the second.  Positive duty, based on the Victorian model, would be very effective for that.

CHAIR:  Has the Commission sought an amendment to the legislation to enable it to bring proceedings in its own right under the Act?

DR WATCHIRS:  Under the Human Rights Act, no, but we have asked for the leave provision to be     to have an automatic right to appear, as is the case in Victoria, and for the notification provision to be broadened.  Currently, we are not required to be notified where the Territory is a party and, of course, they are the exact cases we want to be notified of public authorities.  So there have been some cases that we have missed.

CHAIR:  When you intervene in proceedings, how do you pay for that?
 

DR WATCHIRS:  Currently, we give the bill to the Government Solicitor but that looks like it may be changing.  In other jurisdictions, human rights commissions have their own budget which is quite limited, so there are only one or two cases a year.  I suspect that may be where we are heading, but at the moment we just give all the bills to the Government Solicitor for counsel.

CHAIR:  Thank you.  I will ask whether any of the parties given leave to appear have any questions to ask.

If not, then thank you, Dr Watchirs, and thank you, Ms Toohey, for coming to give evidence today, and for the very interesting discussion we have had, which has been extremely informative, if I may say so.  Thank you very much.

DR WATCHIRS:  Thank you.

MS TOOHEY:  Thank you.

THE WITNESSES WITHDREW

MS EASTMAN:  Commissioners, I need to tender some documents in relation to this session.  These are the CVs of both Dr Watchirs and Ms Toohey.  Also, I think we may include the tender of Dr Watchirs' chapter in Law Making Human Rights.

Commissioners, these tenders now cover five documents, so it is an addition to the ones in your list, and they will be marked Exhibit 18.13 through to 18.17.  We will make some amendments to the tender list to reflect that.

CHAIR:  Those documents will be admitted and we note that the tender list will be accordingly amended.

EXHIBIT #18.13   CURRICULUM VITAE OF DR HELEN WATCHIRS

EXHIBIT #18.14    DR WATCHIRS BIOGRAPHY, ACT HUMAN RIGHTS COMMISSION WEB PAGE

EXHIBIT #18.15   CURRICULUM VITAE OF MS KAREN TOOHEY

EXHIBIT #18.16   HUMAN RIGHTS ACT 2004 (ACT)

 
EXHIBIT #18.17   CHAPTER IN LAW MAKING AND HUMAN RIGHTS, BY HELEN WATCHIRS, SEAN COSTELLO & RENUKA THILAGARATNAM

CHAIR:  It is now nearly 10.45.  When should we resume?

MS EASTMAN:  The program for this morning     we have gone over time a little bit.  Professor Justine Nolan is waiting.  We had hoped to start her evidence at 10.30.  Can we press on with Professor Nolan before having a break?

CHAIR:  Yes, we can press on.  We might have to have a break before lunch, a short break at some stage.

MS EASTMAN:  We will.  I will check with everyone.  If it is convenient, if you wish to take a short break, say, of five minutes or so now.

CHAIR:  I think it might be sensible.

MS EASTMAN:  As a comfort break for anyone who requires it, for those following the proceeding.  I hope that won't be an inconvenience to Professor Nolan.

CHAIR:  All right, we will just adjourn for five minutes now and resume at 10.50.

ADJOURNED    [10.44 AM]

RESUMED    [10.50 AM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you.  The next witness is Professor Justine Nolan.  Sorry to keep you waiting.

PROFESSOR JUSTINE NOLAN, CALLED

CHAIR:  Professor Nolan, thank you very much for coming to give evidence to the Commission.  I apologise for keeping you waiting.  We do tend to run over time from time to time.  I will now ask Ms Eastman to ask you some questions.

EXAMINATION BY MS EASTMAN

 
MS EASTMAN:  Professor Nolan, can I introduce you.  You are currently the Director of the Australian Human Rights Institute in the Faculty of Law and Justice at the University of New South Wales?

PROF NOLAN:  That's correct.

MS EASTMAN:  You provided your CV to the Royal Commission, which sets out a long and extensive history of work in the area of human rights, but with a particular focus on human rights for corporations and, specifically, human rights in business.

PROF NOLAN:  That's correct, yes.  My main research focus is on the interaction of human rights with business.

MS EASTMAN:  In this panel, the Commissioners want to understand how international human rights law and the CRPD can be incorporated into the policies and practices of businesses and, essentially, corporations, but other vehicles as well; they might be partnerships, they might be not for profits, they may be charities.

For people with disability, their human rights are directly affected by businesses and corporations in all aspects of their lives, so one of the questions for the Royal Commission is how do we translate the CRPD rights beyond just the government sector but into models that touch on the obligations of businesses?  That's what I want to ask Professor Nolan about.

Professor Nolan, can I start with you.  The starting point, of course, is that international human rights treaties are about obligations between state parties or obligations state parties have to international organisations like the United Nations; is that right?

PROF NOLAN:  That's correct, yes.

MS EASTMAN:  That means that when a country takes on the international law obligations, it is not the case that those obligations have any direct impact on businesses or corporations?

PROF NOLAN:  That is correct.  There is some academic dispute about this direct and indirect, but what you have stated is the general assumption, that the obligations fall directly on the states and then indirectly on the business.  But when states undertake this obligation, they also undertake an obligation to protect individuals within their jurisdiction from human rights violations.  That would then include making sure they are looking at the role and practice of non state actors as part of that protection role.

MS EASTMAN:  There has been an enormous amount of debate at the international human rights law level about what might be vertical integration of rights and horizontal integration of rights, so this has been a topic of some interest for decades; is that right?
 

PROF NOLAN:  Yes.  It is taking that question of: is it possible to assume there are direct obligations on business.  The more standard mainstream view is, as we said, that they fall on states and states then have that role of ensuring that businesses within their jurisdiction also are respecting and protecting human rights.  But there is some distinction around vertical and horizontal application around that.

Within the discourse, particularly in the last 20 to 30 years, there is a much greater acceptance of corporations accepting responsibilities in relation to human rights.  There is more discursive, more divisive debate about whether they are obligations or responsibilities.

MS EASTMAN:  Before I come to ask you     I will ask you quite a few questions about the UN principles in terms of business and human rights, there is a much older and longstanding model, is there not, where the international law regime brings together employees, employers and governments in what might be called a tripartite model to the work of the International Labour Organisation; is that right?

PROF NOLAN:  Yes.  The International Labour Organisation, which predates the United Nations, is the only international body with this tripartite structure, where governments, employer representatives and employee representatives all have a say and, basically, a stake in the drafting of international treaties and policies dealing with international labour law.  So it is an interesting and a great model because it ensures that worker representatives are also at the table when laws and policies are being drafted that directly affect them.

MS EASTMAN:  There are a large number of International Labour Organisation conventions, ILO conventions, that touch on quite a wide range of human rights in a workplace setting.  They might protect people in terms of work, health and safety, but we know there are also specific conventions that touch on human rights.

One is an ILO convention --- on discrimination in employment and occupation.  I am not asking you for the detail of it.  If we look at that convention, essentially it is one that assumes it is not just governments which are going to be affecting workers rights in the field of employment, it will also be private sector employers.  That illustrates that, sort of, tripartite model of identifying the rights bearers, the duty holders, and then the obligation of government to make sure those rights translate into a local setting?

PROF NOLAN:  Yes.  The ILO does this formally, and that's one of the treaties you mentioned where it is explicitly recognised.  Particularly in the last 10, 20 and 30 years, you have seen developments in the United Nations, within the OECD, which are bringing business and worker representatives informally into that picture as well.  The ILO is the only one who has that formalised structure which, when its treaties are drafted, have this effect and have input from all these bodies.

But we have seen a growing interest of the development of guidelines and  
declarations that are geared towards the role of business and understand that business is essential to the development of policy and the implementation of policy, whether for the United Nations or the OECD.  We are seeing that in the current climate discussions that are being led by global leaders, but very much with the role of business and civil society having a lot of weight there.

MS EASTMAN:  We have seen, for example, the ILO conventions being brought into Australian law, for example, as schedules to the Australian Human Rights Commission Act, to the operation of the Fair Work Act.  We have seen examples, haven't we, in the area of employment and labour law that the specific conventions can be incorporated in particular legislation to give effect to those international obligations?

PROF NOLAN:  Yes, that's right.  Australia has a model whereby when we ratify an international treaty, we then have to adopt or amend domestic law to ensure to give effect to that international treaty.  To be fair, we do this on somewhat of an add hoc basis, in part because we don't have a national charter or Human Rights Act where it may be done in one hit, but we do it in various ways, whether through employment or discrimination law.  We do it very well often in discrimination law; the Sex Discrimination Act, the Disability Discrimination Act.

What we do sometimes then is pick and choose which parts of those international treaties are evident in domestic law.  The great Hilary Charlesworth once said that Australia has a patchwork quilt approach to human rights in that we grab pieces and string them all together, rather than have them in one place.  But we do do that and you can see the effect of particularly some of the treaties of the ILO relevant to Australian domestic law.

MS EASTMAN:  I want to turn to the United Nations Guiding Principles on Business and Human Rights.  They are described as the authoritative global standard of outlining the expectations of states, being countries, and businesses in preventing and addressing business related human rights abuses.  These general principles were unanimously adopted by the United Nations Human Rights Council in 2011.  Australia was a co-sponsor of the principles, was it not?

PROF NOLAN:  Yes, Australia was a strong supporter of these principles.  The idea around the principles is to look at the state obligations with regards to human rights and look at the role of companies and ensure that both companies and states/governments are working in a complementary fashion to ensure the respective human rights.  Often primarily focused in the workplace but not only that, it's a broader remit than that.

MS EASTMAN:  I want to briefly ask you about the outline and the operation of the Guiding Principles.  I am very keen to explore with you how the principles have really worked on the ground and have been effective or not over the last 10 years.

The Guiding Principles have three pillars: the first pillar is recognition that it is the  
nation state or the country's duty to protect human rights; the second pillar is that businesses have responsibility also to respect human rights; and the third pillar is the need to ensure there is access to a remedy for business related human rights harms.  Is that, at a very high level, the three pillars that underpin the Guiding Principles?

PROF NOLAN:  Yes.

MS EASTMAN:  Can you tell us how or why that pillar approach is important?

PROF NOLAN:  The Guiding Principles, as you know, were adopted in 2011 but they are coming off 30 or 40 years of agitation and activism and interest at an international and domestic level about the role of companies in working to ensure greater respect for human rights.  What the UN special representative did when he was drafting these was not to impose new obligations on countries but basically to take their existing obligations, which are evidenced in human rights treaties or in the International Labour Organisation treaties they have already ratified, confirm they have those obligations and then introduce business as a complementary partner, as a way of ensuring there is greater respect for human rights in the workplace.  It is not an either or, like the state does it and business doesn't do it, or business does do it.  Both have standalone responsibilities, but what they are recognising is that they will be more effective when they work together at partners because they are recognising in many places around the world, business is more influential in some places than government.  So it is very important to think about how you both incentivise and encourage, but also demand in some cases, that businesses respect human rights in the workplace and in the communities where they operate.

The Guiding Principles very much, sort of, mainstreamed this intersection of human rights with business and you would see it now in this field is the authoritative statement.  Many businesses have themselves come out and said they are supportive and they apply it in their workplaces.  The Australian Government has consistently been a supporter of the UN Guiding Principles.

MS EASTMAN:  When we are talking about business, just so we are clear about who and what type of businesses are covered by pillar 2, I think sometimes there is a misunderstanding that this only applies to businesses that are multinational corporations, those really big corporations that operate across many countries and have significant economic power.  Are the Guiding Principles applicable to those corporations?

PROF NOLAN:  They are applicable to those corporations but it was a very deliberate decision to ensure that all companies, small and medium sized enterprises, multinational enterprises, all fall within the rubric of the Guiding Principles.  So all businesses, whether public or private and no matter what the size, have responsibilities to respect human rights.

It is evidenced over at least the last three or four decades, when there has been a concerted effort to gather evidence of abuses by corporations, that in order to make  
change you need to involve a plethora of companies and that every company can impact human rights in some way.  Many of them have a really positive impact, by providing jobs and paying taxes.  But there are also a large number of companies of different sizes which have a negative impact on heart.

MS EASTMAN:  It is not just limited to the large, global multinational corporations but it could apply to all levels of business, including quite small businesses that operate in Australia?

PROF NOLAN:  Yes, we have seen that very small companies     and the way it is doing it is not trying to impose onerous obligations on companies, but saying: here is the gambit of human rights and when you are looking at how you operate, you need to respect the individuals who are coming within your sphere, in many ways, as a basic way of doing business.  So it is deliberately recognising that businesses of all shapes and sizes need to respect human rights.

MS EASTMAN:  When we talk about human rights, we are drawing on the international human rights treaties framework.  How do businesses understand those human rights, which are often described as the governance obligations, as even being applicable to them?  Can you take us through the process of how business identifies what rights even apply to the particular business settings?

PROF NOLAN:  The Guiding Principles refer to the broad, internationally recognised human rights, which at a minimum is the International Bill of Human Rights, so the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the eight fundamental conventions of the ILO.

But the UN Guiding Principles also explicitly note that depending on the operations of the business, there would be other specific human rights treaties or declarations that would be relevant to those who are impacted.  So looking at the rights of Indigenous people or the rights of women or the rights of migrant workers.

The way that business might understand it     over the last 10 years or so, in many ways there has been an attempt to translate the language of human rights as relevant to business.  While the whole ambit of internationally recognised human rights may be relevant, it is also acceptable to understand that business, in certain circumstances, may prioritise the operation of certain rights that are most relevant to their business.  For example, if a large mining company was looking at a establishing a new mine then it would be clear that the rights of Indigenous people who might be in that area would be relevant.  It also might be clear that the right to health or the right to water would also be relevant because they may impact that.  Versus a small company, is working in a urban setting and is setting up a garment factory, those rights may be less relevant but there would be rights particularly around the workplace that would be most relevant to them.

So there is flexibility in understanding that while all internationally recognised  
human rights might be considered, there is a way of prioritising and understanding which rights are most relevant to the particular operations of a business.

MS EASTMAN:  Taking the Convention on the Rights of Persons with Disabilities, the CRPD, has that featured in the development of the Guiding Principles or had any special place in the Guiding Principles?

PROF NOLAN:  No.  In fact, the great shame of the developments in the business and human rights sphere in the last 10 years or so is that there's a lack of explicit discussion around the rights of persons with disabilities.  The UN Guiding Principles were adopted five years after the CRPD and it makes a very brief reference in the commentary to the Guiding Principles but not in the body of the principles themselves.

So you haven't seen the business and human rights movement really focus on these rights, yet there is a great need to.  So there's a generic assumption that they are relevant to the rights of persons with disabilities but there is not an explicit focus on it within the Guiding Principles, other than a brief mention.

MS EASTMAN:  The Guiding Principles haven't, for example, incorporated some of the features we see in the CRPD in terms of cross cutting rights, the concept of transformative equality.  Some of those quite CRPD specific concepts have not made their way into the Guiding Principles or into subsequent publications around how you apply the Guiding Principles over the last 10 years.

PROF NOLAN:  No.  In many ways, the Guiding Principles are, sort of, a big picture top down approach.  The critique we are making around the lack of focus on the rights of people with disabilities would also be relevant, say, to the rights of migrant workers.  There is a glancing reference to them in the United Nations Guiding Principles as well, but no understanding of the specific context.

So concepts around reasonable accommodation or how you might apply the rights of persons with disabilities are not set out in the UN Guiding Principles.  So it is a big picture, looking at how companies should operate, how companies might conduct human rights due diligence, in that they might understand and work out a way to understand which rights are most relevant, and then introduce those concepts.

MS EASTMAN:  Could we put it this way: the absence of perhaps thinking about how disability fits into the Guiding Principles presents an opportunity for development of the Guiding Principles?

PROF NOLAN:  Absolutely, yes.  I think that's so true.  It's not an absence which means it's not relevant, it's an absence which actually means an opportunity to address it.  You could use the top down guide as a way in, to then to focus on more specific issues.  That is what has been done in some areas.

That's the approach taken with how some are looking at disclosures around climate,  
for example, using the big picture of the UN Guiding Principles to focus their business on how does this apply to this specific issue and what might we develop to ensure that there is improved implementation and respect for rights.

MS EASTMAN:  You have provided to the Commission a really interesting report published by the Human Rights Institute, but also in conjunction with the Australian Human Rights Commission:

At the Crossroads:  10 years of implementing the UN Guiding Principles on Business and Human Rights in Australia 2021

The Commissioners have that report but that report doesn't touch on disability at all.  I assume that wasn't any deliberate omission, but does that reflect that some of the priorities that have developed in the business and human rights area have followed particular issues that are relevant to some of the businesses that have really taken up business and human rights principles?

For example, you mentioned the mining or extracting industry.  They are quite big in looking at these principles.  So you can see the influence of that take up in the report.  But disability is not in there, and is that also a reflection that we have some work to do on the Guiding Principles in Australia in their application to disability?

PROF NOLAN:  Yes, absolutely.  In many ways it is deliberate because we only picked up on four or five issues which are featured and which Australian companies are constantly grappling with in a public space; issues around supply chains, modern slavery and informed consent around Indigenous communities.

The fact that business is not grappling with how disability rights are relevant to them largely means it is really not on most of their radars.  So it is an opportunity to focus on that and look at how you apply the general principles to other areas.  So it is very much an area which is under addressed in Australia.

MS EASTMAN:  There are two areas I want to ask you about, coming out of the report, that you acknowledge there needs to be progress would be embedding human rights due diligence into business practice and ensuring access to a remedy for a victim.  Taking those two areas and applying the principles, how would that work in practice?  Because that could apply to disability, couldn't it, that area?

PROF NOLAN:  Yes.

MS EASTMAN:  What would be the steps through for a business that touched on the day to day lives of people with disability?  What would we be asking those businesses to do if the businesses were acting consistently with the Guiding Principles?  How would that work?

PROF NOLAN:  The concept of human rights due diligence is something the UN Guiding Principles introduced into this context of business and human rights.   
Obviously the concept of due diligence in the legal field has been around forever, but it is more commonly considered in the context often of corporate due diligence, looking at the risk to the company.

Human rights due diligence is a process where business looks at the risks it poses to others, as opposed to an inward looking focus.  It is a concept getting a lot of traction at the moment globally.  The EU has recently announced it will introduce an EU wide human rights due diligence law that would require companies within the EU to conduct human rights due diligence.

What does that mean?  Essentially, it is putting companies on notice that they have to identify, track, report and then, if needed, remediate problems where they are negatively impacting human rights.  Because the theory is if you are not identifying and tracking, if you don't have the data, then it is very hard to address it and think about solutions, whether policy driven, governmental, et cetera, if you don't have the data to do that.

So human rights due diligence is trying to introduce the idea for companies that they need to more comprehensively consider their impacts and they need to report back on these in a public way.

In this field, it might be looking at, well, how is a particular company identifying that it either has a positive or negative impact on the rights of persons with disabilities?  It might be, for example, keeping account of people they are employing who have disability.  It might also be looking at and considering ways they are negatively impacting people, that they are not employing people or not involving people in a more inclusive way, not marketing their product to persons with disability.

So it is a risk based analysis but it is a human rights risk based analysis which looks at the activities of the company and its impact outwards on individuals.  So it is a really useful exercise to think about.

Then the final stage of human rights due diligence is to look at, if there is a problem we have caused or contributed to, what is the remedy for that?  How might we come up with a plan to remediate or address that problem?  It is that circular effect which is meant to be ongoing.

You wouldn't do it in a one off way; it might be an annual assessment, it might be a two year assessment.  But it is a way of introducing to companies social considerations to identify and track in a manner that they have often only done to focus on financial impact.

MS EASTMAN:  In terms of looking at those businesses that have worked to use the Guiding Principles in their corporate practices, have you seen a difference, particularly positive outcomes for businesses in terms of their impact on human rights?

 
PROF NOLAN:  Yes.  There are lots of positive examples and there are also many negative examples as well because there are different ways of approaching these issues.  The UN Guiding Principles are guidance, so they are soft law, they are not legally binding.  Some companies have taken a more tick the box approach, where they appear to have gone through the motions of reporting or doing due diligence but not actually making any operational changes.

But there are other ways where companies have taken it to heart.  For example, if I look at an example of a garment company, Katmandu, which is based in New Zealand.  They were looking to figure out how they would apply this and in order to improve their labour rights within their supply chain, they decided they needed to look at how to narrow that down a little bit, so they could enter into more substantive and longer term arrangements with suppliers, to ensure the rates they were paying and the production timeframes they were on meant that people all along the supply chain had better odds of having their rights at work respected.

They were using the guidance of the Guiding Principles, taking in this place largely labour rights around the workplace to restructure and look at how their business model was impacting people, because last minute changes to orders or paying low rates, which ensured people were not getting overtime rates, et cetera, had that flow on effect in their supply chain.

So you have seen companies take it on board and think about how we need to do more risk assessment in relation to the way we work.  So they have been affected, but there are also limitations in that you can't force companies to use them.  They are an expectation rather than a requirement.

CHAIR:  Have any Australian companies explicitly adopted the United Nations Guidelines?  By Australian companies, I include Australian companies that have substantial international operations as well as domestic operations?

PROF NOLAN:  I don't have an exact figure but I would say almost all Australian multinational companies which have an international presence, as well as in Australia, if you went to their website, you would see reference to the UN Guiding Principles.  All our big mining companies, David Jones, Country Road, Rio Tinto, all make reference to these on their websites.

And now, as part of their annual reports under the Modern Slavery Act, they are also referencing them as well.  Companies as diverse as operating in the construction sector, to the garment sector, to mining make reference to these Guiding Principles.  How well they are implemented is distinct from whether they make reference to them.

MS EASTMAN:  You mentioned modern slavery.  In the time we have, can I ask you about modern slavery, because it is related to the approach to business and its impact on human rights.  We are seeing internationally that governments are prepared to hold businesses accountable if the businesses have in their supply chain  
instances of modern slavery.  So modern slavery might involve trafficking of people    

PROF NOLAN:  Forced labour.

MS EASTMAN:  Is disability in the mix in terms of modern slavery?

PROF NOLAN:  Disability is in the mix in the context that persons with disability are highly vulnerable to aspects of modern slavery, including trafficking and abuse of workplace rights.  But is there an explicit mention of them in the Modern Slavery Act?  No.  But the crimes set out in the Modern Slavery Act tend to fall on those who are most vulnerable, including persons with disability, women in the workplace, migrant workers, so they are very much the impacted population.

MS EASTMAN:  In summary, what does the Modern Slavery Act do and how does it regulate business activities?

PROF NOLAN:  The Modern Slavery Act requires Australian businesses with an annual revenue of over $100 million to annually report on the risks of modern slavery in their operations and supply chains.  They have to submit an annual report to a government registry, which is a public report.  In that, they basically set out what is their action plan, in essence, for dealing with modern slavery.  Then they are also responding by noting the actions they have taken to address it.

So there is criteria within the Act which they report against.  The criteria could be more specific, but it is there at a high level.  Then there is an obligation on companies that fall within that revenue threshold to report.

MS EASTMAN:  Other than the reporting and the reviewing, is there any remedy for a victim of modern slavery in the Modern Slavery Act as it operates in Australia?

PROF NOLAN:  No, and there are some real limitations around the legislation.  One is the fact that there is no explicit requirement around remedy on that.  There is also not an explicit requirement around human rights due diligence.  Even though that is mentioned as encouraged within the law, it is not required.  There is also no sanction for not complying.  So there is no penalty if a company doesn't report, other than ability for the government to report back on that in an annual report to Parliament.

MS EASTMAN:  For those following, the Modern Slavery Act we are talking about is Commonwealth legislation?

PROF NOLAN:  That's right.

MS EASTMAN:  There is also a proposed New South Wales Modern Slavery Act, but that hasn't got up and running in full at the moment.

PROF NOLAN:  No.  That was adopted in 2018 but it is not yet implemented and it  
is still under negotiation, you might say, within the New South Wales Parliament.

MS EASTMAN:  The Commissioners may be interested to know, three of the registered service providers have modern slavery statements.  It seems, Commissioners, that perhaps in future hearings we can explore with the three largest service providers how modern slavery impacts on discharging their rights to people with disability.  But I won't ask Professor Nolan about that today.

Has the Modern Slavery Act made a difference?  Can you see an impact on modern slavery in terms of business practices in Australia?

PROF NOLAN:  We have only really seen one year of reporting so far and it is too early to have a definitive conclusion around its impact.  What is clear is that it has had a very strong impact in raising awareness and educating companies around human rights, specifically the human rights that fall within modern slavery.  Five years ago, either large companies or smaller companies in Australia would never have heard of modern slavery.  Now, many companies are holding modern slavery training within their workplace.

Modern slavery might include the withholding of passports or identification documents.  There is a continuum.  There is a bad workplace and then there is serious exploitation which falls within modern slavery.  But there is a lot greater awareness and education around it.

Some companies have made great strides in terms of addressing how they operate, particularly around their supply chain.  Whether it has effectively filtered down to mitigate modern slavery at the bottom of supply chains, where it is mostly found, is a work in progress at the moment.  I would say there are some changes that should be made in the law to ensure that happens and also it is a process that takes some time, so it hasn't happened in one year.

MS EASTMAN:  When we talk about supply chains, if it's goods or a product, we are saying where does this product come from and what are the component parts, working backwards to see what they are.  I think sometimes people say if you have a mobile phone, the supply chain might take you back to where the lithium battery comes from and that takes you into the Congo, for example.  So is there slavery in that supply chain?  Is that what we are looking at in modern slavery?

PROF NOLAN:  We are looking at that, but we are also looking at things closer to home.  It's also the provision of services.

If you look at cleaning services or security services, these are services provided to a company that are also part of their supply chain, but would be contained within Australia in relation to that.  You look at how those workers are recruited, how they are paid.  There may be workers that come to Australia or are in Australia often on short term visas, so you look at their treatment in the workplace as well.

 
So it is goods, as you say, which may end in Australia or may end in a far flung place overseas, that supply chain.  But the supply chain is also local, particularly more so with the provision of services within Australia.

MS EASTMAN:  One area the Royal Commission will look at is an area called Australian Disability Enterprises, sometimes described as sheltered workshops.  These are segregated work settings for people with disability.  There is a range of arrangements around how those settings operate, but also the rates of pay.  We have heard already in the Royal Commission that the rates of pay can be surprisingly low and, indeed, below the minimum wage.

Is a modern slavery lens something that can be used to understand disability rights and segregated workplace settings?

PROF NOLAN:  Yes.  Modern slavery, as I said, is a term that you would look at on a continuum of exploitation.  Wage underpayment by itself may not be modern slavery but it would be a violation of workplace laws, potentially within Australia.  But wage underpayment, combined with a threat of coercion or a way of controlling workers, whether physically or psychologically, would then transform that abuse into modern slavery.

It is that, sort of, next stage of exploitation which often means the worker doesn't have the ability to freely choose his workplace or leave his or her workplace.  It is that element of coercion or control, combined with that other abuse, which transforms something into modern slavery.  That may very well happen in the workplaces you mentioned or in many other workplaces in Australia.  So modern slavery is not something that just happens overseas, it very much happens within Australia.

MS EASTMAN:  Coming back to the framework of the Guiding Principles on business and human rights, if those principles around identifying the risk of the business to human rights, not the risk of the recipients of services to human rights, if that due diligence model and reporting model is followed, are they mechanisms of detecting where modern slavery might occur?

PROF NOLAN:  Very much so, if done well.  The Australian Modern Slavery Act is probably the first iteration of this type of reporting.  We are now seeing in Europe a push to move to that second phase, to have laws that require and mandate human rights due diligence.

But what you are trying to do is involve companies in the process of detection and remediation.  Most companies do not want to be doing the wrong thing, they want to know if they are doing the wrong thing.  Of course, there are some companies who are deliberately causing harm or underpaying workers.

But what you want to do is basically figure out a way to incentivise businesses to get involved and remediate this process.  So human rights due diligence, if companies  
understand it and implement it properly, is a way of identifying and preventing the harm from occurring in the first place.  Because what you really want to focus on is prevention, not cure.  If we can prevent the problem, which human rights due diligence is aimed to do, then we don't have to focus on remediation.

MS EASTMAN:  I will check with the Commissioners if they have any questions.

CHAIR:  Commissioner McEwin?

QUESTIONS BY THE COMMISSION

COMMISSIONER McEWIN:  Yes, one question.  Thank you, Chair.  Professor Nolan, thank you for your evidence.  You said in the Guiding Principles on Business and Human Rights, there is very little reference to disability and very little reference to the UN's CRPD.  In your view, why is that the case?

PROF NOLAN:  Because I think there is a lack of focus on the rights of persons with disabilities globally and that for many years what the UN system has done as well is segregate it into one issue and silo it off and not recognise the intersectionality of the rights of persons with disabilities, and the crossover beyond the workplace into community standards, gender, migrant workers, et cetera.

The UN has often taken quite a siloed approach to this.  That was still in evidence in 2011 when the Guiding Principles were focused on.  The fact that it hasn't been really the focus of a major push within companies, I think, also led to that.

I mean, thinking about people who were involved in these original negotiations, they have since said there should have been a greater focus on migrant workers, rights of persons with disabilities, women, et cetera.  But it did set this big picture.  So I think that's a limitation but I also think, as was mentioned, it's an opportunity to use those broader guidelines to then focus on a specific area and content.

COMMISSIONER McEWIN:  Thank you, Professor.  Thank you, Chair.

CHAIR:  Commissioner Ryan.

COMMISSIONER RYAN:  I would like to extend Commissioner McEwin's question to one further.  What could we practically do in the near future to make sure the investigation of human rights for people with disabilities is a high priority for companies?

PROF NOLAN:  It's a great question.  I think one thing is to increase awareness of the issues and by doing that, I think there needs to be greater transparency.  So a lot of time people don't focus on a problem, in part, because they don't know there is a problem there unless you have an immediate connection to that problem.
 

I think there is a lack of data around the impact of companies on people with disabilities, how many people are working in companies within Australia, what type of jobs they are doing, looking at their working conditions.  I think the first step is very much a data gathering, if you like, identifying what the problem is and then increasing awareness and education, the fact that there is a problem, and then look at how we involve both government and business and civil society in coming up with a solution around that.  Part of it is, I think, a lack of     my thinking is there is a lack of data, and we need to focus on gathering that information and that companies should be reporting on that, like we see companies reporting on gender balance on boards.

COMMISSIONER RYAN:  Thank you.

CHAIR:  I think you identified Rio Tinto as one of the companies that either was adhering to or purporting to adhere to the Guidelines.  Your report also refers to Rio Tinto blowing up the 46,000 year old Juukan Gorge.  For companies that purport to comply with the Guidelines but do not comply, what mechanisms are there for identifying the companies?

PROF NOLAN:  What I said in my commentary is there is a big difference between companies that purport to adhere to the Guiding Principles and those which implement them.  The Rio Tinto and Juukan Gorge example is an example of a massive gap, where the company was purporting to implement the Guidelines but, in fact, did not follow through in terms of consultation with Indigenous communities, so did not adhere to them.

Within the Guiding Principles, it is a soft law guidance, so there is no accountability for following them or not following them, other than really the court of public opinion.  So in terms of Rio Tinto, we saw that played out with increased pressure from civil society and investors on the CEO and advisers, and you saw changes in that management structure.  But that was something where they used the guidance, they used the Guiding Principles in many ways to say you did not do this, but they looked at mechanisms outside.

A better way would be to draft a law or policy that has accountability mechanisms within that.  I think the Modern Slavery Act also falls short in relation to that.

When we look at something like human rights due diligence laws, which are starting to be drafted now in Europe, they are looking at whether you could include civil liability provisions in there, so if a company does not follow through, it would be possible to bring a lawsuit against the company.  They also are considering whether companies could be fined, whether boards of directors might be penalised, whether directors, if they purport to do this and do not do it, might be suspended or barred from being a director for a year.

There are lots of proposals being considered by the United Kingdom at the moment  
in relation to how to strengthen corporate adherence to their Modern Slavery Act, which involves both sanctions and incentives.  It is that mix of accountability when we look at     if we want companies to report at the very first instance on how they are impacting persons with disabilities, there should be both penalties for not doing so and incentives for being involved and doing that, because companies respond very well to incentives in relation to that.  But you need both the carrot and the stick in this approach.

The Guiding Principles and the Modern Slavery Act show us part of a way forward but they don't show us a complete picture.  We are now 10 years, and three or four years after the Modern Slavery Act, and we need to be on this focus of continuous improvement.  We shouldn't then accept something that was adopted in 2011 as the standard.  We need to now look at how we can do it better.

CHAIR:  I think you answered my earlier question, I thought a little cautiously, by saying there are lots of companies that have referred to the Guidelines on their websites, and so forth.  Do we have any information on the proportion of companies that purport to adopt the Guidelines that actually do implement the Guidelines in Australia?

PROF NOLAN:  In relation to those that do it well?

CHAIR:  Yes.

PROF NOLAN:  No, we don't have exact figures.  In fact, we are working on a report now to look at how companies are doing that in the context of the Modern Slavery Act.

But there are examples.  There is an interesting example of a small Australian company called Outland Denim, which operates out of Queensland, which I would say is the epitome of how the UN Guiding Principles are operating in terms of both their operations and managing their supply chains, including looking at how their largely female workforce is looked after in their supply chain, providing child care, employing people with disabilities, all of that.  But they are more the rarity than the norm.

I think what you will see is companies are adopting bits and pieces of it, rather than often wholesale.  In many ways, what the UN Guiding Principles has been is a massive education and awareness program.  Ten years ago, many companies did not think human rights were relevant to them at all.

Now you would find that most companies, larger companies in Australia, understand the relevance of human rights and they are asking the question of how they do it, not why they should be doing it.  I think that is the point we need to get to with looking at the rights of persons with disabilities and their interaction with business, as to how it should be done, not why.  I think we have moved beyond that.  It is how do we do it better.
 

CHAIR:  Given the provenance of the Guidelines through the Human Rights Council, where does the United States sit?  It is not exactly a fan of the Human Rights Council.

PROF NOLAN:  The United States also supported the UN Guiding Principles.  The distinction here is that the Guiding Principles are soft law, so it is not a hard law treaty, which often makes most countries support them widely because they cannot be held accountable for it.

The current US administration is moving more ahead in this area.  They have drafted a national action plan on the implementation of business and human rights to give broader guidance on how American companies should behave with respect to what they refer to as civil rights.  Australia has not done that, but the US is doing that, administration by administration.  So there is more progress now than three or four years ago.

Like all international laws, the US tends to adopt a bit of an exceptionalist view but they are actively looking at and considering how businesses interact with human rights.  And there are a number of distinct mechanisms and laws in the US by which you can advance these issues.

CHAIR:  Thank you very much.  I will inquire    

COMMISSIONER McEWIN:  I have a follow up question, Chair, relating to one of your questions.  Professor Nolan, you mentioned the carrot and stick metaphor.  Do you have any specific suggestions for the Royal Commission as to how we can explore that further, given we have started to hear a lot about some companies might be giving an incentive to employ people with disability, but that's not the norm.  Do you have any suggestions or advice?

PROF NOLAN:  One example might be to think about, if you were thinking about the employment of people with disabilities as a criteria for being involved in government procurement contracts, that you would have to show that that would be one of the criteria which your tender would be judged against, and the Federal Government would have the ability to include that as a criterion in tender.  So that would be one incentive to look at, government procurement, which is by far the largest procurement budget within Australia.  So build in those types of aspects, whether you are talking about a quota or whether you are just looking at it more holistically and generally looking at employment, that should be something that should be in consideration.  That would be very much an incentive that would work in the workplace.

COMMISSIONER McEWIN:  Thank you.

COMMISSIONER RYAN:  Chair, could I ask another question.  Earlier I asked you what could we do to encourage a greater priority of human right in business and you  
said have more data and awareness and things of that nature.  Do you not think it is possible that the reason modern slavery has a much higher priority and focus within business now is because there was legislation passed which focused people's attention on that and people with disability don't have quite the same legislative back up?

PROF NOLAN:  Absolutely.  So I do think that legislation is a real     is very important here.  I think what you need to see is a mix of measures.  What you see in the modern slavery field is that law     in many ways, government was led by business towards that.  They were showing they wanted an even playing field, that some companies were reporting and some weren't.  I think the same analogy might apply here.

I think law is essential, but I also think you have to think about     when you are thinking about implementation, law is not the sole solution.  If you are going to implement it, you have to think about how we change policies and bring business along in relation to that.  I think law is an essential part of the picture but you also have to think about an education or awareness or campaign around that to support the law, not just draft a law and leave it at that and expect it will be complied with.

I also think it is important, if government is looking at this area, they look at what resources they have to monitor such laws.  In relation to the Modern Slavery Act, we have a law that really has no resources or very limited resources within the Federal Government to monitor compliance with that law.  The compliance is then largely left to civil society to investigate whether or not companies are responding.

We don't do that with laws around taxation, but we are comfortable with human rights to leave it up to the market and civil society to monitor it.  So if we are going to have laws that mandate greater respect for human rights and integrate it, then let's resource those laws so there is the ability to ensure compliance with those laws.

CHAIR:  I shall assume that none of the parties given leave to appear have any questions they wish to ask, unless somebody leaps up.  Since somebody is unlikely to leap up, thank you very much, Professor Nolan, for coming to the Royal Commission and giving evidence.  We have covered a lot of ground in the last hour.  Thank you for your evidence to the Royal Commission and the ideas you have put forward, which provide some interesting food for thought.  Thank you.

PROF NOLAN:  Thanks very much for the opportunity to speak with you.

THE WITNESS WITHDREW

CHAIR:  Ms Eastman, do we adjourn now?

MS EASTMAN:  We do.  We are running a little behind time.
 

CHAIR:  I thought we were doing very well.

MS EASTMAN:  Could we adjourn for 15 minutes?

CHAIR:  All right.  It is 13 minutes to 12.00, so we will adjourn to 12.00 noon.

ADJOURNED    [11.47 AM]

RESUMED    [11.02 AM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Commissioners, our next witness is Ms Christina Ryan.  I can now see her on the screen.  Welcome, Ms Ryan.

CHAIR:  Thank you, Ms Ryan, for coming to the Royal Commission to give evidence.  We appreciate your attendance.  Just to explain where everybody is, we have three Commissioners who are participating in this hearing, all of us are in the Sydney hearing room.  Commissioner McEwin is with me on my right and Commissioner Ryan is on my left.  Ms Eastman is in the same room.  I will now ask Ms Eastman to ask you some questions.

MS CHRISTINA RYAN, CALLED

EXAMINATION BY MS EASTMAN

MS EASTMAN:  Ms Ryan, you have provided the Royal Commission with an outline of your relevant work experience, your experience in human rights advocacy, your experience with the CRPD and also conventions touching on women's human rights.  We have asked you to talk to us today in the capacity of your role as the CEO of the Disability Leadership Institute.

Can I start by asking you to tell the Royal Commissioners about the Disability Leadership Institute, what you do, how you do it and why you established it.  Then we will get straight into some article 29 and CRPD issues.

MS RYAN:  Certainly, thank you, Ms Eastman.  The Disability Leadership Institute is something I established five years ago.  I did that after spending 25 years working as a frontline advocate.  I did a lot of work in community sector organisations.  But throughout that entire period I also did paid and voluntary work as a human rights  
advocate across both women and disability.

I specifically started focusing on disability 25 years ago.  I have done a number of things in that time, including being on the NGO delegations for CEDAW, also the Australian Government delegation for CSW, the Commission on the Status of Women.  Both of those I did as part of Women With Disabilities Australia, with which I have done a lot of work.

I have also moved across in frontline disability advocacy as an NDAP funded organisation, National Disability Advocacy Program funded by the Federal Government to provide individual and systemic advocacy for disabled people in the ACT.

It was during that time I realised the fundamental issue we are dealing with here is inequality, that the high levels of violence that were experienced by disabled people were because of the extreme marginalisation that we experienced and I realised what we needed was leadership, so I founded the Disability Leadership Institute in 2016.

We focus on leadership development, we have training programs, coaching programs, but we also have an intentional community of practice.  Much like organisations like Australian Engineers or Australian Women Lawyers, we have disability leaders who are able to come together and share their experiences through a community and thereby reduce their isolation, particularly for those working in mainstream organisations who are often the only person they know of who is disabled in their workplace.

So the Disability Leadership Institute provides membership spaces for people, so they can come together and talk and network, and then we also have our training and development programs as well.

MS EASTMAN:  One of the issues we have heard in the work of the Royal Commission to date is the absence of people with disability in leadership roles but also in decision making positions.  We have heard that in government and we have also heard that in the private sector and businesses.  You may have heard Professor Nolan's evidence before you came on, talking about business and human rights and responsibilities of directors.  The topics we will talk about today are not just limited to governments but are also touching upon how business responds to bringing disability leaders in.

The starting point: we thought we would start with Article 29 of the CRPD.  That article includes a range of rights, but it speaks to promoting actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs without discrimination and on an equal basis with others and encourage their participation in public affairs, including participation in nongovernmental organisations and associations concerned with the public and political life of the country and in activities and administration of political parties.  Also, the forming and joining of organisations of persons with disabilities to  
represent persons with disabilities at international, national, regional and local levels.  So that is one part of Article 29.

We heard from some advocates yesterday, in terms of both their work at an international level engaging with the UN and their local level.  But our focus will be on disability leadership in this participation in public and political life.

What needs to happen in Australia to make Article 29 a reality for disability leaders?

MS RYAN:  Quite a bit.  There has been very little attention to this.  In fact, when I was establishing the Disability Leadership Institute in the first half of 2016, I sat down and chatted with a number of trusted colleagues in the disability community who I had got to know over many years or decades.  One of the things we identified was that there had been maybe six, we think, leadership development programs for disabled people during the previous 20 years.  Most of those were pilot projects or one off projects that were also geographically based, so they were in a specific state or in a specific city.  And that was it.  If we really dug deep and did a bit of research, we might find another two or three programs, but it was a very low number over 20 years.

That gives a really strong indication of the lack of attention this area has been given.  It also gives a really strong indication of the level of priority that governments and private organisations give to disability leadership.  That really spoke to me about the need to not only have leadership development but also to have an ongoing presence of leadership development, so that somebody one day     as somebody did yesterday, they stick up their hand and think, now is the time I want to start investigating this.  It's the right time for them, so they can start investigating.  What's the best process for them?  What sort of training and development might be useful for them?  Rather than having to wait for some other pilot project to spring up in some odd location in six months or six years' time.

There has not been a lot of work done in this area at all.  In fact, I would like us to broaden the focus and talk about Article 3 in this context, right at the beginning of the convention, one of the principle articles which talks about equality and the right to equality of disabled people.

I think, fundamentally, what we are examining here is one of the outcomes of that inequality. Disabled people have simply not been considered as leaders.  We seem to have been left by the wayside when it comes to being considered as people who are able to do leadership.

When I have spoken to organisations, both government and private organisations, it had never occurred to them that they should be running disability leadership development in any way.  There was nothing happening in Australia when I first established the institute.  So it has been a long road and very little work has been done.

 
We are seeing the consequences of that.  We are seeing a lack of visibility, and I don't mean visible disabilities.  The vast majority of disabled people you can't tell by looking.  I mean that there are very few openly disabled people in positions of leadership, decision making, positions of authority.

It is actually quite an interesting thing.  One of the things I discovered during my Westpac Fellowship     back in 2017, I did a Westpac Social Change Fellowship     was there were no actual disability leadership programs, but there was also no recognition that disabled people should be targeted or provided with development opportunities.  There is now one inhouse program that is running and, in fact, I am actually delivering that.  It is one of the large corporate organisations.  Good on them.  They are one of the only ones that seems to have picked anything up.

Most organisations have not actually considered that their disabled staff might be targeted for fast track or senior opportunities.  If we look not only at my Westpac Fellowship report, but reports like the Doing It Differently report, which was undertaken by the University of Canberra Institute of Governance and Policy Analysis back in 2016.  They show us that there is just no consideration that leadership development is a thing for disabled people.

We are not seeing people in the media, being the journalists fronting the media, although that is changing now.  We are not seeing people as the experts turning up talking about particular issue.  We are not seeing disabled people running organisations, including organisations that have a disability focus.  We are not seeing disabled people in the rooms of power, the leadership and decision making rooms.

There are over 900 parliamentarians in Australia, state and federal parliamentarians.  We have four openly identified disabled people in the parliaments of Australia.  Four.  That number has been static for some years.  The personnel have changed slightly.

This is what we see as a result of a lack of disability leadership focus, a lack of development opportunities.

MS EASTMAN:  Can I jump in there.  Why is leadership important to ways of bringing human rights into the Australian systems and practices?  What is important about having a leader to connect to rights implementation or rights compliance?  What's that connection?

MS RYAN:  It's quite interesting, and I think we need to move away from it being one leader.  It's really a bit classic to think we can just have one disabled person in the room and then our problems are solved.  Although that one person will make a difference, we know that.

The difference that happens when disabled people are in the room is that we don't get forgotten.  It's as simple as that.  Like any minority group, our presence in the room makes it possible for us to be a factor in the discussions and, therefore, in the  
outcomes of those conversations, the decisions made.

I want to reference the pandemic plan that was developed by the Australian Government last February/March.  This Commission, in fact, did a very good analysis of the absence of disability in that particular plan and the ramifications for us.  That is what we see when disabled people are not in the room; we get forgotten about.

All the disability leaders I know have examples where being in the room has made a difference.  My work at the United Nations, for example.  I am visibly disabled, I come with a wheelchair.  The year I was inside the negotiating rooms at CSW, there was a large amount of language about minority groups, about intersectionality, multiple disadvantage and, specifically, disability that ended up being    

MS EASTMAN:  Jumping in there, CSW is the Commission on the Status of Women.

MS RYAN:  That's right, sorry, for the blokes.  One thing that happened is we ended up with a lot of language there.  It was very interesting being in that room.  There were no other evidently disabled people on any of the official delegations at CSW that year.  It felt incredibly alone to be there.

That said, many of the delegations actually came up to reference what this language is about.  Can we look at it this way?  How do we talk about it?  That language that ended up in those particular outcomes is still referenced today in CSW outcomes; it has remained, so it has changed the ground.

The other thing that then happened was that other forums within the United Nations started realising their interactions needed to include, disabled women on this particular example, but disabled people.  So not everything that happens, happens in a disability specific space.  It also happens in mainstream spaces, whether that's boardrooms, whether that's management teams, whether that's government, whether it's the Cabinet.  Whatever room it is, the presence of disabled people in that room, openly identified disabled people, will change the way the conversation turns.  It will remind the other people in the room that, oh, we have to think about the disabled folk.

It also provides, critically, diversity.  What we actually know --- and there is plenty of research about this in other areas --- is that diverse groups of people make very different decisions.  Their decisions are richer, deeper.  They often solve problems a lot faster.  There is a lot of research saying not only disabled people but diverse teams solve problems up to twice as fast as nondiverse teams.  So, having a presence of disabled people in the room will change what's happening.

To shift the power dynamic and have those people as people engaged in the decision making process actually means that decisions are starting to look different.  We are remembering that minorities exist, we are remembering that some of those  
minority folk are disabled people, we are remembering the intersectional disabled folk, so our Indigenous folk, our people from culturally diverse backgrounds, our people from the LGBTIQ space.  The disability community is incredibly diverse.

By having the presence of those people in those spaces, we will be shifting the conversation.  That is the importance of having people in the room.  It takes us right back to the work in the '80s that was being done around getting women into boardrooms, where a lot of major companies, and we're talking Fortune 500 companies, followed some time later by ASX companies, having women in boardrooms meant they could speak more robustly to their target market.

If you have a bunch of old white guys trying to talk to women about things, it's a problem.  We have the same problem with the lack of disabled people in the room.  We have people who don't really understand disability trying to talk to us.  Of course, we end up with things happening like the lack of pandemic response, the deprioritising of vaccinations, we end up with things happening like the NDIS independent assessments proposal.  The minute disabled people saw it, we all went, "This is not going to work, it just has to stop."  That is the problem with not having disabled people in the decision making spaces where they need to be.

MS EASTMAN:  Let's take the example of trying to increase the presence of women on boards.  There has been a range of initiatives about that.  Now, there are even databases that women can sign up to, to say they would like to be considered for a public sector board or private sector board.  There is something called BoardLinks.  To what extent has the work done on encouraging, supporting and promoting women to go on boards included women with disability?

MS RYAN:  Well, it hasn't.  It doesn't.  We get forgotten in these things.  This is a really terrific example of what sort of problems arise when we forget about disability.  Here, we are talking about Article 31, which is the one about data collection.

The interesting thing about BoardLinks is that women who sign up for BoardLinks, which is run by the Commonwealth Office for Women, are able to indicate whether they are Indigenous, because we want an increase of Indigenous women on our government boards and committees.  It is also possible to indicate that you come from a culturally diverse background, because we want to see an increase of culturally diverse women in these spaces.  When I say "women", I mean women and female identifying and nonbinary folk.  Yet there is no box to tick when we sign up for BoardLinks which says "I identify as a disabled women".

For example, quite recently the NDIS Minister has been going through the process of identifying four new board members for the NDIA, a disability specific board.  She has had no capacity to use the BoardLinks database to assist her to find disabled people for those positions.  Yet there is a database full of highly qualified, board capable women.

 
MS EASTMAN:  It could include women who have disability but haven't identified in that way?

MS RYAN:  Absolutely.

MS EASTMAN:  But your point is, when you talk about particular work or particular boards, like the NDIA, that may have a very direct impact on women with disability, that ability to cut across both gender and disability is important; is that the concern?

MS RYAN:  It's crucially important.  And I know there are many disabled women on the BoardLinks database, I know many of them, except there is no way for the appointment process to identify who they are.  So data collection, data disaggregation is not happening.

There is a lot of things around data that aren't helping us here.  The thing that's really getting in the way is we don't know where disabled people are, we don't know what their career paths are looking like, we don't understand what outcomes are happening.

I would like here to mention the Victorian Government because it is the only Australian Government which is doing any real work around disability leadership and improving the number of disabled people being appointed to boards and committees, but also to senior positions within the Victorian Public Service.

But even the Victorian Government is not collecting the data it needs to better understand how many disabled people are actually applying for these positions, how many people are being appointed, what the barriers therefore might be that they could be addressing.

MS EASTMAN:  I am going to jump in.  When you talk about Victoria, you are talking about the Victorian Disability Strategic Plan?

MS RYAN:  No, I'm not talking about the Victorian Strategic Plan, not specifically.  Over the last five years, the Victorian Government has run a number of projects and they have been both before and after the current plan came into effect, with a view to improving the leadership development of disabled people.

Also, subsequently they ran a lengthy project which has now come to an end around improving the numbers of disabled people on government boards and committees, recognising it needed to improve.

I will recognise there the sterling work the Victorian Government has done around gender where it has achieved gender parity, particularly in legal circles.  So appointing judges, magistrates, those sorts of people, and inhouse Commissioners, like human rights Commissioners and equal opportunity Commissioners.  They now have gender parity in Victoria over about a five year period.  They consciously made a decision to do something about it.
 

They have also consciously made a decision to do something about appointing disabled people but they still aren't collecting the level of data they require that would make it easier for them to appoint people and understand the barriers.  So even the one government in the country that is doing some really outstanding by at least recognising the lack of disability leadership, still has a long way to go around its data collection process.

MS EASTMAN:  There some examples, aren't there, of scholarships to promote, for example, women to have the experience of working on both public sector and private sector boards.

I think Victoria allocated something in the order of $700,000 to increase women's leadership and participation in decision making to increase board representation, and that included scholarships for women with disability.

The Australian Institute of Company Directors also had a program at different times to encourage women with disability through a scholarship program.  So there have been some initiatives.

MS RYAN:  There have been some initiatives.  Most of these have happened in the last five to eight years.  It's fantastic to see them.  They are few and far between, they are very hard to get.  That's okay.  We are seeing a shift.

I would like to see the Institute of Company Directors collect data on who is disabled.  They have the same problem as the BoardLinks database.  We do not know how many members of the Institute of Company Directors identify as disabled people.  Yet they collect data on Indigenous directors, culturally diverse directors and women.  So we know they are able to collect data on the diversity status of their members but they are not collecting that data about who is openly identifying as disabled.

What this actually means is we then don't know who are the ASX directors who are disabled people.  We know it's a very low number but we don't know specifically who is there.

It is really giving us a problem in making sure we can not only use those people as visible examples, as role models, but it also means we are not in a position then to appoint them into other spaces.  It also means we can't use them as mentors, as guides.

It also means we don't gain an understanding of the barriers that are being faced.  We know a lot of these appointments are made through networks but we aren't understanding what the barriers to those networks are, other than what, for example, Disability Leadership Institute members talk about.

For example, being unable to access training and development opportunities in the  
mainstream because they are not accessible for one reason or another, or because people are made to feel unwelcome, or people turn up at networking events, for example, which is a really important leadership domain, and at those networking events, people just don't want to know the disabled people in the room so they tend to ignore us or sideline us, unless we have a lot of chutzpah and shove ourselves into people's faces.

So there is an incredible amount of lack of understanding     which is an oxymoron.  There is a lack of understanding about exactly where disabled people are and the barriers we are facing.  What we do know is that it is incredibly hard to break into those mainstream spaces because there is no work being done to actually shift them, to change them, to make them more adaptable, more suitable for the way disabled people operate.

MS EASTMAN:  Surely there is a role for directors and leaders without disability to have a better understanding and be more proactive?  It cannot just be a burden imposed on the person with disability to have to say, "Yes, I wish to be a leader", and make space.

MS RYAN:  Exactly.

MS EASTMAN:  We have to address the other side of it.  So how do we could that and what do you see in terms of creating that awareness among leaders, boards, CEOs, to open up for people with disability?

MS RYAN:  I think there are a number of things that came through from my Westpac Fellowship report.  One of them is the classic thing of nobody has ever thought of it.  So it's about thinking about it, for a start, about recognising it.

An organisation which is global called The Valuable 500, they don't do leadership development and training, they are mainly awareness raising, which is great.  We need that work being done.  They do a lot of work with the World Economic Forum.

They have undertaken a survey of major companies globally and I understand that over 90 per cent of organisations are saying that disability diversity is important, less than 4 per cent are actually doing anything.  This is backed up by what I found in my Westpac Fellowship report, which was done at a similar time to this research.  A lot of organisations are saying, "It's really important, disability is really important, we need this to be happening, we want more disability diversity."  But they are not actually doing anything, they are just expecting it to show up.

MS EASTMAN:  What is the barrier then?  What is the barrier?

MS RYAN:  The barriers are numerous in this way.  One of them is a willingness.  Organisations are not really identifying that they don't have any disabled people.  They kind of know but they don't think they should do anything about it.

 
Something else we identified very early in the piece at the Disability Leadership Institute is that most of the other leadership development programs that have referenced disabled people, apart from the fact that they are run by nondisabled people, are actually put on at entry level.  So there is an assumption that disabled people are not already leadership folk.

As evidence of that, I will refer to your witness list from yesterday, which is a big long list of people who are highly qualified disabled people, just about all of them, all of whom would be capable of sitting on boards, of acting as managers of executive leadership teams.  You have a couple of Commissioners at the Royal Commission who are very much in that space, capable of doing those sorts of things.

Yet there is no training and development pitched at that level, until we came along.  I'm sure there will be others that come along eventually but at the moment we're it.  The assumption is that disabled people are all not in these places because we are not ready.  Which is of course what they said about women back in the '80s.

We know a lot of it is coming down to prejudice.  I'm going to name prejudice.  I refuse to use polite words in that space, mainly because prejudice is such a revolting thing.

So, we are not resourcing leadership development, we are not making an assumption that leaders also happen at all levels and we are not maintaining a consistent presence of leadership.  So even when organisations do something about it, they might do one small thing, hopefully for no cost at all.  Or if they put some money or resources into it, they will put a bit of money at the end of the financial year, they will tuck it at that.

This is not what we have seen in other diversity areas.  In other diversity areas where change has really happened, we have seen consistent longitudinal attention being paid to the area.  We have seen specialist leadership development for that particular cohort of folk.  We have seen fast track programs inside organisations, both government and nongovernment.  We have seen CEOs and management executive teams, particularly, taking charge of the importance of this particular program or diversity stream.

I recall my Westpac Fellowship year was the year that Westpac also hit 50 per cent of women in its executive leadership, and it made a big issue of it.  It was very excited by it.  It had worked hard at this, it had made a concerted effort over it, it had put serious resources into it and it arrived at 50 per cent of its board and its leadership.

MS EASTMAN:  Does that mean that one of the action items or levers for change is to be very clear about having quotas or targets and building in an intention that can be enforceable, in terms of changing those numbers?

MS RYAN:  I think so.  I don't care what you call them.  I have spent most of my life  
working in human rights and you can call them quotas or targets, you can call them intentions.  Whatever political language works for whoever is making decisions at the time, whether they are in government or in the private sector.

We have actually have, for example, an NDIA with no disabled people on its board or in its executive leadership team.  The NDIA is now getting up for being a decade old.  That's actually a longer lifespan than the global average for CEOs tenure, which is five to eight years.  So why are we yet to have a disabled CEO?

DSS, the Department of Social Services, has no disabled people at SES level and they are the ones making policy decisions on behalf of the Federal Government around disability.

MS EASTMAN:  Can I ask you on that     we will hear shortly from some representatives of the Australian Government and one area I want to ask about is the focal point, which is a particular mechanism in the CRPD to have in one place how government deals with complying and/or implementing the CRPD rights across all areas of government.  Are you aware of the numbers of people with disability who are actively working as part of the Australian Government's focal point?

MS RYAN:  I'm not aware of that one specifically.  I do know a few other things.  One of them is that there is about five openly disabled people at SES level, so that would be decision makers and people who are briefing ministers.

MS EASTMAN:  That's the highest SES level of the three SES levels; is that right?

MS RYAN:  No, we are talking about the whole of the SES, which is quite a large number of people.  Five.  Five in the Australian public service.  The absence is quite profound.

The last National Disability Strategy, which has expired and is being redeveloped, did not mention leadership once, yet economic engagement and economic development was a particular chapter in that particular strategy.  So they were able to talk about economic engagement for disabled people, which the NDIS is also very fond of doing, but there is no attention being paid to leadership development as part of that economic development.  So it doesn't look like the situation is changing any time soon.

I have already mentioned that we only have the four openly disabled parliamentarians.  Most disability service providers     this is all disability specific.  Most disability service providers have few or no disabled people on their boards.  These are people in multi million dollar industries, servicing disabled people, yet they have no one in the boardroom or in the decision making management teams who are disabled.  It's just incredible.

We actually don't know, as I said, how many openly disabled people are on ASX board because it's not been collected.  We don't know how many openly disabled  
people are in our major companies.  We know about women, we know about Indigenous people, we do not know about disabled people in that these spaces.

Anecdotally through the DLI and through our backroom dealings, we have some understanding of individual people here and there.  None of them are at executive leadership level and we are unaware of people on any of the boards of those organisations.

MS EASTMAN:  What about if the Government says, well, we don't have anyone in these leadership roles but we do have a lot of consultation and we set up forums and we have advisory bodies.  The Royal Commission has heard, for example, an advisory group to the Department of Health during the immediate response to the COVID pandemic.  So we see across government forms of consultation, advisory boards and the like.  How does that fit in with meeting, in your view, those Article 29 obligations and addressing the right to be heard?  Is that good enough?

MS RYAN:  Well, advisory bodies     independent assessments happened with advisory bodies in place.  The deprioritising of vaccination happened with advisory bodies in place.  No, they don't work.  In fact, research we have undertaken     we are not a research organisation so it is highly unusual for us to be able to do this, but three years ago we did undertake research as part of a particular consulting job we were doing for a particular agency.

We did a global scan.  The person who did the global scan for the DLI is someone whose Churchill Fellowship was based on disability leadership back when I was doing my Westpac Fellowship on disability leadership.  What we identified is that advisory groups don't work.  It's as simple as that.

If we want to understand disability, if we want to have that presence in the room, if we want to understand what the impact of the views, the understanding of disabled people is, then we need people in the room on an ongoing basis.

The reason advisory groups don't work is because you need to have a very proactive channel between the decision making body, which is your board or your executive leadership team, across to the advisory group.  The first thing that happens under pressure or when it is politically inconvenient is that connector breaks or it isn't referred to or people take the advice and then decide something that is more politically expedient for them at the time.  So it is a very different power dynamic.

Advisory groups don't have power.  All they can do is advise.  So we see advice     not poor advice, we see really good advice being given, but it is readily discarded.

This is why we undertook the global scan.  The organisations that succeed not just in developing inhouse inclusive culture and not just in developing a leadership pathway, career pathways internally for disabled people so they do end up at the top, but also the ones where disabled people have a much better customer experience, for  
want of a better word, are the ones that have a presence of disability in the room, from the board down.  They literally build it into their culture.  It is not about this constant focus on disability, it is simply having disability as part of the everyday conversation, from people who know.

MS EASTMAN:  Are there models that, from an Australian perspective or for the Royal Commissioners to look to, that might assist the Royal Commissioners in seeing if somebody has done it well, or perhaps I might describe it as promising practice?  Are there any models we could look to?

MS RYAN:  Promising?  I'm not sure I can even dredge up a "promising" for you, Ms Eastman.  It's quite disappointing.  All the examples we found as part of that global scan were international examples.  I think that says a lot, perhaps, about how the Australian Government and Civil Society are implementing the CRPD or not, how they are addressing Article 3, inequality, how they are really putting attention into that, because this work is simply not being done.

There is no work I am aware of where that is being addressed in a robust way for more than a pilot program.  Even in our disability services, the people who are supposedly wanting to understand what the customer experience of disability is, including the NDIA, do not have that presence and do not have mechanisms in place to make it happen.

They seem to be working on an organic "let's hope and pray" kind of option, as we know, which is why the CRPD exists in the first place.  We won't get outcomes by hoping and praying.  We actually need implementation of instruments.

That means governments must commit resources.  The private sector must understand that its development programs, its leadership work, needs to incorporate disability as a specialist focus.  We also need to understand data tracking, so we know where people are, what their leadership pathway experiences are like.  We need graduate programs, for example, and a good 25 per cent of their intake needs to be disabled people to meet population parity.

We need organisations to think about what their board looks like.  In fact, the international benchmarks which hang off the CRPD     they are not mentioned in it specifically     the understanding of organisations that focus on disability is that 50 plus per cent of their decision makers will be disabled people.  This is what happens in that global scan when we look at the organisations doing it well.

If you want to have disability as your business, including people like DSS making briefs for the Government, then you need that have that 50 plus per cent figure presence in the room of decision makers, half the people.  We are well short of that for the NDIS board.  We don't have any at the moment.

It also means we need to think about 20 per cent, which is about the Australian level of population parity, being present in the room for non disability specific  
organisations.  So the big corporates, the ASX companies, non disability relevant boards and committees of government across the public sectors.

We actually need to be looking at these numbers and we need to be committing to them across all levels of government but also in the private sector, otherwise we are not going to see this change, according to the evidence we have from the international community.

MS EASTMAN:  I think in a few weeks' time you are going to participate in our employment hearing and we will talk about specific employment indicators.  I don't need to ask you about that today, but I might ask the Commissioners if they have any questions.

CHAIR:  Yes, Commissioner McEwin.

QUESTIONS BY THE COMMISSION

COMMISSIONER McEWIN:  Thank you, Chair.

Ms Ryan, thank you for your evidence.  One question: we have heard a lot in this Royal Commission about the historical and ongoing exclusion and segregation of disabled people in many areas of life.  Do you think that is a contributing factor to the lack of disabled leaders and, if so, how and how can we address that?

MS RYAN:  I think it's quite critical.  In fact, there is almost this cultural norm or cultural assumption that disabled people are inherently incapable of leadership.  I think that's the prejudice I have been referring to, Commissioner McEwin.  It's quite profound.

We get examples coming to us at the Disability Leadership Institute all the time.  Many are from people who are not openly identified because of the risk it would be to their career to openly identify.  So people know     particularly the higher you get in an organisation, the more senior you are, the more risk it poses to the individual to openly disclose their disability.

People approach me and my team through private messaging or email, once they understand we are discreet with this information.  I will also mention, we have a way of checking with our members when they first sign up whether they are prepared to be openly identified as a member of the DLI or not.

We do that for the same reason, because people have been sidelined, people have been ridiculed, people have been talked about, even in front of them, in a way that is demeaning, derogatory, which presupposes they have no capacity to be in the place they are in.

 
We have people who have talked about being appointed to boards as the token disabled person, and I use the word "token" very advisedly there.  So we have a disabled person on a board, but they are never provided with the information they need to be able to participate in the board equally.  They are never given the papers in time, in a format that works for them, so they can prepare for the meeting.  There may not be interpreters in the meeting, so they can't participate.  They are literally there as a token presence.

It is something we also see in the Doing It Differently report, which I cited, which examined the Australian public services.  At the time that report was being done, I spoke to five public services as part of my Westpac Fellowship, but I also talked to somewhere about 40 different Australian large corporates.

The story was the same right across the board.  The bullying levels were incredibly high, at least twice as high as for nondisabled people.  In subsequent conversations I have had with other public sector organisations where their inhouse surveys are done anonymously, they have identified three or four times bullying levels.

But what people have also said is things like they are told to their face, "We have given you a job, what more do you want?"  They are never sent for professional development.  "That's not for you.  You are here just to do this, you won't be going any further."

You are literally given a job and that's it.  There is no understanding or expectation, no social recognition that a disabled person arriving in an organisation might one day end up being the CEO, might one day end up being the departmental secretary.

Apart from finding this appallingly offensive, the people we have as part of our leadership development programs at the DLI and as part of our coaching programs, there are many, many people, as part of that alumnus, who will one day be running government departments, who should be sitting on ASX boards, who are incredibly talented, incisive, strategic people, except that the people around them don't think they are up for it.

I have had people saying in political forums     our mainstream political parties are appalling at this.  People are actively discouraged from running for preselection or when they are in the room, people start those whispering campaigns.  I have had stories of people saying they came across a cluster of people all saying, "He's not up for it though really, is he?  He won't be able to hack the pace."

So there's active discouragement, active supposition, and it all goes back to the same reason of out of sight, out of mind.  It's confronting, it's embarrassing.  People don't want to think that somebody who is potentially needing some workplace adjustment or who operates differently is actually going to be as good or better at their job than they are.  I find that really confronting.

CHAIR:  Thank you.  Commissioner Ryan.
 

COMMISSIONER RYAN:  I don't have any questions, Chair.  I thank Ms Ryan for her evidence.  It is very clear and has given us plenty to think about, but you are ahead of us, so I don't have any questions for you.

CHAIR:  Ms Ryan, I will inquire whether any counsel have questions for you.  If we follow the usual practice, I expect there will not be.  That is correct.  Thank you very much, Ms Ryan, for giving your evidence so clearly and persuasively.  We are very grateful to you for coming to the Royal Commission, thank you.

MS RYAN:  Thank you.

MS EASTMAN:  Commissioners, Ms Ryan will be participating in Public Hearing 19, so some of the topics we have covered today we will probably expand on in the context of employment in a couple of weeks' time.  Thank you, Ms Ryan.

MS RYAN:  Thank you.

THE WITNESS WITHDREW

MS EASTMAN:  Can I tender some material.  You have Professor Nolan's CV and you also have the report which we touched on, called:

At the Crossroads: 10 years of implementing the UN Guiding Principles on Business and Human Rights in Australia 2021

Could both those documents be received and marked, respectively, Exhibit 18.18 and 18.19.

CHAIR:  Yes, that can be done, thank you.

EXHIBIT #18.18   CURRICULUM VITAE OF PROFESSOR NOLAN

EXHIBIT #18.19   REPORT TITLED AT THE CROSSROADS: 10 YEARS OF IMPLEMENTING THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS IN AUSTRALIA 2021

MS EASTMAN:  Can we adjourn and we were hoping to resume at 1.50, if that is convenient to the Commission.

CHAIR:  We will resume at 1.50.

 

ADJOURNED    [12.52 PM]

RESUMED    [1.50 PM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  We have a panel of three representatives of the Australian Government.

Before we turn to them, Commissioners, as you are aware, the Australian Government provided a Background Paper to the Royal Commission in June last year.  The Background Paper was said to be the Australian Government's approach to the interpreting of the CRPD and various matters touching on the Australian Government's compliance with the CRPD.

The Background Paper is on the Royal Commission's website.  In the course of preparing for this hearing, we wrote to the Australian Government with some questions arising from the Background Paper.  Our letter dated 26 October sought clarification of matters in the Background Paper.  The Commonwealth responded on 1 November this year.

The purpose of this panel is to ask the Commonwealth representatives some questions about the Background Paper and the response of 1 November, and to touch on the issues I outlined in the opening.

I want to stress to those following the proceeding that the Royal Commission is not stepping into the shoes of the CRPD Committee and taking an approach of one by one of the rights, working through the extent to which the Commonwealth complies with those rights.  Our focus for this session is to understand the approach the Commonwealth Government or the Australian Government takes     and I use those expressions interchangeably.

CHAIR:  Before you start, can I thank Ms Robertson, Mr Walter and Mr Mansfield for coming to the Royal Commission to give evidence and for the material provided on behalf of the Australian Government.

Just to explain where everybody is, and you probably know, the three Commissioners sitting on this hearing are all in the Sydney hearing room.  Commissioner McEwin is on my right, Commissioner Ryan is on my left.  Ms Eastman, who will be asking you some questions, is also in the Sydney hearing room.  I will now ask Ms Eastman to put some questions to you.

MS SUE ROBERTSON, CALLED
 

MR ANDREW WALTER, CALLED

MR LUKE MANSFIELD, CALLED

EXAMINATION BY MS EASTMAN

MS EASTMAN:  Commissioners, the three members of the panel were identified by the solicitors acting for the Australian Government.  Other than their names and titles, we have not been provided with a copy of any of the panelists CVs and we know little about them.  So I’m going to ask some questions to understand who our witnesses are.

Ms Robertson, could I start with you first?

MS ROBERTSON:  Yes, you certainly can.

MS EASTMAN:  We know that you are First Assistant Secretary of the Attorney General's Department in the area of Integrity and International Group, International Division.  That's your official title; is that right?

MS ROBERTSON:  That's correct.

MS EASTMAN:  What does that mean?

MS ROBERTSON:  That means I am responsible for the Office of International Law, which provides international law advice across the whole of government and the Attorney General and Cabinet, and also is responsible for the coordination and submission of Commonwealth responses to the individual complaint mechanisms under the CRPD.

I am also responsible for another group, which is the International Crime and Cooperation Group, which is not necessarily relevant to this discussion.

MS EASTMAN:  What are your particular responsibilities with respect to the CRPD?

MS ROBERTSON:  General international law advice as matters may arise, where government agencies ask for advice.  We also provide advice from time to time to the Human Rights Unit, of which Mr Walter is the head.  For example, in relation to our appearances before treaty bodies, we may review legal advice there on our positions.  So the focus is more on the legal advice and less on implementation.

 
As I said, we also are in charge of the government's responses to the complaint mechanisms under the five human rights treaties, including CRPD.

MS EASTMAN:  Am I right in understanding that your particular expertise is not focused solely on the CRPD but how the CRPD fits into the general international human rights obligations of Australia, that picks up the other treaties; is that right?

MS ROBERTSON:  I think that's fair.  I think it's fair to say I don't deal with it every day.  We deal with such a breadth of international law issues.  But I deal with it from time to time and I am in charge of, I guess, providing the second counselling on legal advice that occurs when it comes up.

MS EASTMAN:  I can see at the other end of the table Mr Walter.  You are the First Assistant Secretary, Attorney General's Department, Integrity and International Group, International Division.  Is that your title?  It seems to be the same as Ms Robertson's title.

MR WALTER:  No, that's not correct.  I'm the First Assistant Secretary of the Integrity and Security Division, Integrity in the International Group.

MS EASTMAN:  What are your responsibilities and how do they differ from Ms Robertson's?

MR WALTER:  My division has a very broad range of responsibilities across a range of policy areas.  I won't list them all because that would take some time.  However, most relevantly, my division is responsible for domestic human rights policy, particularly in respect of discrimination laws.

We have in the division a human rights branch, which includes a particular unit, the human rights unit, which is responsible for developing, implementing and advising on domestic human rights policies and also a range of other matters to do with human rights.

MS EASTMAN:  Are we right in understanding that you led the Australian delegation to the CRPD Committee's review of Australia's Second and Third Periodic Reports in September 2019?

MR WALTER:  That's correct.

MS EASTMAN:  Mr Mansfield, we understand you are the Acting Deputy Secretary, Disability and Carers in the Department of Social Services; is that correct?

MR MANSFIELD:  That's correct.

MS EASTMAN:  What are your responsibilities?

MR MANSFIELD:  The Disability and Carers stream is responsible for a range of  
policies and programs related to people with disability and carers, including the National Disability Insurance Scheme from a policy perspective.

Most relevantly to this particular hearing, there is a branch within the stream that is responsible for the National Disability Strategy, in terms of its implementation, as well as the development of the next disability strategy.  There is also a branch, Advocacy and Inclusion branch, that provides support for advocacy services and other inclusion measures, but also is the focal point for engaging with Mr Walter's group with respect to the Convention matters and reporting processes associated with the Convention.

MS EASTMAN:  Thank you all for your time and participation in the hearing today.  Can I ask each of you, do you have a copy of the Background Paper dated 16 June 2020?

MS ROBERTSON:  Yes.

MR WALTER:  Yes.

MR MANSFIELD:  Yes.

MS EASTMAN:  Can you tell me if any one of the three of you are the author or authors of that paper?

MS ROBERTSON:  Ms Eastman, the paper was coordinated, if you like, and some of it drafted under my Office of International Law, where we had the major role there in terms of treaty interpretation aspects.  But there was also input from others, including Mr Walter's team and DSS as well.

MS EASTMAN:  Do I take it none of you are the authors of the Background Paper?

MS ROBERTSON:  There is no one author to the Background Paper, that is true, although both Mr Walter and myself cleared the relevant parts of the paper, for which we are responsible.

MR WALTER:  Just to clarify, I didn't actually clear this paper but somebody else in my division did.

MS EASTMAN:  When you talk about "clear the paper", both of you, do you mean that there was someone who might not have been the sole author but there was a person or persons who authorised that paper to be provided to the Royal Commission on behalf of the Australian Government?

MR WALTER:  The usual process we follow is for action officers or legal officers to prepare papers.  They then go through a process of clearance and, ultimately, the responsibility for relevant content rests on the senior officer who cleared that content.

 
MS EASTMAN:  Mr Mansfield, did your department have any role in the preparation of this paper?

MR MANSFIELD:  To my knowledge, no, Ms Eastman, I don't believe so, not this paper.  But certainly the responses to questions, we did have input to that process.

MS EASTMAN:  I will come to that one in a moment.  But sticking with the Background Paper from June last year, have you all read the paper?

MS ROBERTSON:  Yes.

MR MANSFIELD:  Yes.

MR WALTER:  Yes.

MS EASTMAN:  Do you all agree with its contents as being accurate and correct?

MS ROBERTSON:  Yes.

MR WALTER:  Yes.

MS EASTMAN:  Does the paper represent the views of the Australian Government at the present time?

MS ROBERTSON:  Yes, that's correct.

MS EASTMAN:  Can I turn to the second paper which I hope you have, and that is the response to the Royal Commission's questions provided on 1 November this year.  Do you have a copy of that paper?

MR WALTER:  Yes.

MR MANSFIELD:  Yes.

MS ROBERTSON:  Yes.

MS EASTMAN:  I will ask you the same as I did before: are any of you the authors of that paper?

MR MANSFIELD:  I'm not the author of the paper.  However, there are areas within the Department of Social Services that contributed to the paper and I authorised certain content within the paper to be provided to the coordinating area.

MS EASTMAN:  Mr Walter, Ms Robertson, what was your involvement, if any, with this paper, the response paper?

MR WALTER:  Perhaps if I go first.  The Human Rights Unit I mentioned earlier  
coordinated the input from various departments to particularly the later questions in the paper, and I cleared the content of the paper, to the extent it related to the responsibilities of my division.

MS EASTMAN:  And Ms Robertson?

MS ROBERTSON:  Ms Eastman, I cleared predominantly topic 1 of this paper, with the exception of question 6, which largely touches on the Disability Discrimination Act for which the Human Rights Unit is responsible.

MS EASTMAN:  Thank you.  I assume you have all read this paper as well?

MS ROBERTSON:  Yes.

MR MANSFIELD:  Yes.

MR WALTER:  Yes.

MS EASTMAN:  Are the contents of this paper true and accurate and correct?

MS ROBERTSON:  Yes.

MR MANSFIELD:  Yes.

MR WALTER:  Yes.

MS EASTMAN:  And they represent the Australian Government's position, is that right?

MS ROBERTSON:  Yes.

MR MANSFIELD:  Yes.

MR WALTER:  Yes.

CHAIR:  Can I ask this question: you have answered Ms Eastman by saying it is the Australian Government's position.  Was any other authority required in order for this to have the status of the Australian Government's position on the matters that are canvassed, both in the Background Paper and in the Answers to the Specific Questions?

MR WALTER:  Thank you, Chair.  I think you might have picked up a slight hesitation in what we are saying.  We can certainly vouch that the matters in it are the position of the Department but I don't believe the papers were cleared through ministers, if that's where you were coming from.

CHAIR:  That's more or less where I was coming from.
 

MS EASTMAN:  And it didn't need to go through any Cabinet process, is that right?

MR WALTER:  Given it was reflecting what we thought were to be the legal and policy positions of the government of the day, no.  If it had changed, if it had departed from that, then we would have sought authority from ministers or the Cabinet if that was appropriate.

MS EASTMAN:  I want to start with what seems to be an overarching message from both the Background Paper from June and the response.  Are we right in understanding that the Australian Government's position is that it has implemented the CRPD, it is compliant with the CRPD and it has incorporated the CRPD into Australian law and practice?

MR WALTER:  Perhaps I might start that response and Mr Mansfield or Ms Robertson can supplement, if required.  If I can just     the short answer is yes.  But maybe it would be of assistance if I gave just a little bit of history.  I won't go into huge amounts of detail.

When Australia decides to sign up to international obligations such as the Convention, there is a process that is gone through to assess the level of compliance Australia has at the time that we are signing the Convention, and that process was followed in relation to this Convention.

MS EASTMAN:  Can I just interrupt you there?  I need to ask you about that and I’ve got a number of questions I do want to ask you about in 2008 this process.

MR WALTER:  Yes.

MS EASTMAN:  My question was really directed to understanding at the present point in time does the Commonwealth consider that it has implemented the CRPD, it is compliant with the CRPD and it has incorporated the CRPD?

I can take you to various paragraphs, 66, 67, paragraph 364 in the November paper.  But I want to start by understanding as a baseline, this is the Australian Government's position it has implemented, it is compliant and it has incorporated?  Am I wrong in understanding that?

MR WALTER:  No.  I think that's correct.  However, as there has been evidence in this hearing already, we don't think this is     this is a dynamic document.  The Convention is a dynamic document.  What we mean by that is to say that human rights are enjoyed within a context and that context changes over time.  So the social, the economic or the technological circumstances in which rights are enjoyed change over time.

So you can't say in human rights, I think, that we have implemented, we can forget about this.  You constantly need to be thinking about what is changing in the context  
of how those rights are enjoyed and do we need to take further action to make sure those rights are protected.  So it's a dynamic process.

While we would say we are compliant with the Convention, it is partly because we have in place the mechanisms and systems to keep those rights under review and make adjustments as we go along.  And just to give you a tiny example, and I won't take long.

Privacy is a very good example of this under article 22.  It picks up article 17 of the International Covenant on Civil and Political Rights.  When we were worried about article 17, drafting that convention, the other convention, we were worried about mail being opened and people peering through people's windows.  We are now worried about data aggregation and we are worried about social media manipulation.

So we have kept our privacy laws up to date and we are in a process of reforming them again, including in relation to disability, to make sure that we continue to give effect to those rights.

MS EASTMAN:  So we could probably have a conversation shortly about the concept of living instruments and organic development of human rights law.  But before we get to that, I just want to come back to these concepts of compliance, implementation and incorporation.

With respect to compliance, does that mean that Australia says it is compliant with its international law obligations and so that concept of compliance is looking outwards to Australia's international obligations?  Is that what compliance means?

MR WALTER:  I think the terms are a little bit interchangeable but, yes, that's how I think of it.  Compliance is that kind of outward looking, what is the international obligation, do we meet that obligation?

MS EASTMAN:  If we talk about incorporation and implementation, incorporation seems to carry with it the connotation that it is that exercise of taking the international rights and making them part of Australian law.  That is the incorporation aspect.  Is that your understanding or use of that expression in the paper?

MS ROBERTSON:  I think that's correct, yes.

MS EASTMAN:  Implementation might be a combination of a range of things, but implementation might cover something other than hard legal obligations but implementation might cover policy, practices and a general mood of changing the culture within government, within states and territories.  Is that     when you talk about implementation, you are giving that a slightly broader concept?

MS ROBERTSON:  I think that's correct.

 
MR WALTER:  If you look at article 4 of the Convention, obviously the obligation there is to adopt all appropriate measures, whether they be legal, administrative or otherwise.

MS EASTMAN:  I want to go back to that point in time where Australia decided it would take on, as a matter of international law, the treaty obligations under the CRPD.  Can I start this way: if Australia is thinking about taking on international legal obligations     and lets for present purposes focus on treaties, I'm not talking about other international instruments or customary international law.  If Australia is considering whether to take on the treaty obligations, is the first step that there has to be a National Interest Analysis?

MS ROBERTSON:  A National Interest Analysis is part of the process.  I think there are a whole range of steps.  The National Interest Analysis is what gets tabled before Parliament through the Joint Standing Committee on Treaties.  That's what allows the democratic discussion to occur about the scope of those rights, their impact and why they are in the national interest.  Also, what if any changes would have to be made in Australian framework, because we generally have a policy that prior to ratification, Australia has in place already a framework that is in compliance with the obligations in the treaty it is proposing to ratify.

MS EASTMAN:  I don't know whether you heard Professor Byrnes' evidence yesterday but I asked him whether, in the ordinary course, Australia would not ratify     and I'm trying to not use the technical language --- but take on the international law obligations unless it had its house in order first.  Is that the general position?

MS ROBERTSON:  Yes, it is.

MS EASTMAN:  The National Interest Analysis is a process of examining the extent to which within Australia the Australian laws, practices and policies are going to meet Australia's international obligations?

MR WALTER:  There is probably     as Ms Robertson was saying, there are usually steps that occur before that.  There's an analysis that takes place, typically led by whichever department is responsible.  In the case of the CRPD, the work was led by the Attorney General's Department.  You analyse the extent to which Australia is compliant.  You might do some consultation and other things.

Then you put together for consideration by the Parliament, by the Joint Standing Committee on Treaties, the National Interest Analysis, which summarises, I guess, the results of that previous work.

MS EASTMAN:  Were any of you involved in that step of the National Interest Analysis, the preparation of material for the Joint Standing Committee on Treaties when the CRPD was being considered by Australia?

 
MR WALTER:  No.

MR MANSFIELD:  No.

MS ROBERTSON:  No.

MS EASTMAN:  We haven't given you this material but you would be aware that a report was prepared by the JSCOT on the case for ratification for the CRPD.  Are you aware of that?

MR WALTER:  Yes.

MS EASTMAN:  There was a body called the CRPD Ratification Task Force.  Is that something you are familiar with?

MR WALTER:  I haven't heard that term before but I suspect that was the working mechanism within government to consider --- at a bureaucratic level, to consider the Convention and its terms.

MS EASTMAN:  Without asking you to comment on the content of the report or the work of the task force but your knowledge generally, it is the case, isn't it, that there was overwhelming support from the disability sector for the ratification of the CRPD?  You are aware of that?

MR WALTER:  So during the consultations, I understand that there were two ways in which the disability sector were engaged in that process.  One was through a public submission process.  I think there were 65 submissions that were received.  The vast majority, I think there were maybe a handful that did not support, the rest were supportive.  Then we also engaged     the department engaged the association of disability organisations to further engage with the disability sector and provide a submission about the potential impact of the convention on people with disability and also the sector, and that was also supportive, yes.

MS EASTMAN:  There was a view, wasn't there, that ratification of the CRPD would have significant positive economic, environmental, social and cultural impacts on Australia?  Does that accord with your understanding?

MR WALTER:  I think the main focus was that it would have a very positive impact on persons with disabilities and that would be a very positive step for them, both domestically and also at the international level.

MS EASTMAN:  There were no disadvantages or negative impacts identified for Australia taking the step of ratifying the CRPD; is that right?

MR WALTER:  Well, I think it's fair to say that there were a number of areas that were identified that would require ongoing focus.  One that just springs to mind is the importance of providing ongoing education and assistance to people who are  
working in the disability sector or working with persons with disabilities, for example in the justice system.  So there were a couple of areas where it was stressed that enhanced efforts may be required but otherwise I think that's correct.

The other thing I might note, and this is in the National Interest Analysis     which if you don't have, we are happy to provide you with, it is available publicly.  It stressed there would be no substantial costs associated with ratifying the Convention.

MS EASTMAN:  There was a view, wasn't there, that the CRPD did not create any new human rights, and that was certainly the government's position as at 2008, prior to ratification?

MR WALTER:  As I understand it, that's correct, yes.

MS EASTMAN:  It remains the case, isn’t it, that the Australian Government considers that the CRPD does not create any new human rights?  You have said that at paragraph 7 of the November paper.

MR WALTER:  That's right, yes.

MS EASTMAN:  One of the issues raised at the time of considering ratification was whether there would be scope for a national review of laws, policies and programs relating to the rights of people with disabilities to ensure the provisions of the CRPD are reflected in service and practices that have a real impact on the lives of people with disabilities.  That's one suggestion.  There wasn't, around the time of ratification or immediately prior to ratification, any steps for a national review of laws, policies and programs, was there?

MR WALTER:  No, I don't think that's quite correct because as part of the assessment process before ratification, the Attorney General's Department engaged with the states and territories, including through the form of a survey, to ascertain whether or not states and territory laws, practices and programs were in conformity with the Convention or not.  There were also a number of discussions that were engaged in, through what was then the Council of Attorneys General on that point as well.

All states and territories joined in that process and the ultimate assessment, which is reflected in the National Interest Analysis, was that for those immediately realisable rights     and we will get onto that terminology    

MS EASTMAN:  We will get on to that shortly.

MR WALTER:  For those immediately realisable rights that Australia was already in conformity or --- Australian states and territories laws were already in conformity.  Then for those that required progressive implementation, they were substantially in conformity as well.  So that was the assessment at the time.

 
MS EASTMAN:  The JSCOT report also touches on a declaration made by Australia in ratifying the CRPD.  On 17 July, the Australian Government made a declaration setting out Australia's understanding of a range of issues, including substituted decision making, compulsory assistance or treatment of disabled persons and the Australian immigration process.

If you have the first paper, the June 2020 paper, you’ve provided to the Royal Commission as attachment A, the Interpretive Declaration to the CRPD.  Have you got that?

MR WALTER:  Yes, we do.

MS ROBERTSON:  Yes.

MS EASTMAN:  What was the rationalisation or what was the reason for the interpretive declaration to the CRPD in 2008 with respect to each of those three areas?  Why was that done?  Do you know?

MS ROBERTSON:  Yes.  I think the Commonwealth was of the view that it would be useful from a legal policy perspective and transparency, to make clear its understanding of the treaty provisions across these three issues.

The first one, which deals with substituted decision making, basically makes clear the Commonwealth's position that the CRPD, and particularly article 12, does not prevent substituted decision making in all circumstances.  The declaration highlights the importance of legal capacity and it is precisely because of the importance of that fundamental right that substituted decision making is subject to important safeguards that are contained in article 12(4) and can only be used as a last resort.  So it was to transparently provide an understanding of how we read that article.

The second interpretive declaration concerns, as you said, compulsory assistance or treatment of persons.  Again, here, the government and the Commonwealth obviously underlined their commitment to the respect for integrity of persons and people's physical and mental integrity, but recognised in some situations that compulsory assistance may be necessary, for example, to guarantee the right of a person with a disability, for example, with a cognitive impairment that may not be able to make their wishes known, that they receive medical treatment.

The third interpretive declaration concerns migration policy and underlines two points.  The first is that, consistent with human rights law more broadly, the CRPD does not create a right for a person to enter or remain in countries of which he or she is a national.  That is consistent with jurisprudence and committee discussions from the International Covenant on Civil and Political Rights and it goes to sovereign rights to control entry, and so on, of aliens and non nationals.

Secondly, the declaration concerns the ability for Australia to have visa health requirements for non nationals.  This has a policy objective of ensuring that people  
have an adequate standard of health appropriate to the time that they want to come and stay in Australia and undertake particular activities.

It is also to ensure that risks to public health are minimised and that the government is able to appropriately and efficiently manage the resources it has in relation to the provision of health services for Australians, including people with disabilities, who are already in the country.

MS EASTMAN:  That sounds like a lot more than simply saying "This is Australia's understanding about the existing rights".  The description you have given seems to carry a sense that Australia is not taking on those particular rights.  Do you accept that it is more than just setting out what your understanding is but it is setting out what the Australian Government will not do?  That's a rejection of the rights, isn't it?

MS ROBERTSON:  No, I don't think I'd say that.  I am trying to explain the policy rationale underpinning each one.  I guess what I would say is that rights can be subject to legitimate limitations as well    

MS EASTMAN:  I'm sorry to interrupt you.  I do want to ask you about legitimate limitations and the way in which the treaty, both in terms of interpretation and stand alone provisions deal with limitations.  But it is not the purpose, is it, for an interpretive declaration to build in for each state what it considers those limitations should be?  That is not the purpose of an interpretive declaration, is it?

MS ROBERTSON:  The purpose of a declaration is to clarify how we read our treaty obligations under the convention, and they may be subject to principles of reasonable limitation under international law.

MS EASTMAN:  It might be said that at the very time of Australia taking on the CRPD, notwithstanding the position is that there are no new rights, that an interpretive declaration gives a nation state relevant time to get its house in order.  Do you accept that is a function of an interpretive declaration?

MS ROBERTSON:  I think I would rather say we     our view is that we need to get our house in order before then, in terms of prior to ratification, and that the interpretive declaration transparently shows how we are trying     how we understand our rights and obligations under this treaty.

MS EASTMAN:  Mr Walter said a moment ago that rights are evolving and changing and circumstances change.  What is the utility of having the interpretive declaration in relation to those three areas continuing in Australia, where we are now some years down the track for working with the CRPD and understanding the CRPD?

MS ROBERTSON:  I think the Commonwealth is of the view that they still stand and serve a purpose.  Until policy changes, the text of the Convention, particularly in the first two, I might add, are really talking about some of the most extreme and  
difficult examples that you could talk about in this area.  So I think those situations may still exist.  And whilst issues of legal capacity and autonomy of decision making must be the first point of call, there will be circumstances in which people require support of various levels to exercise their rights and the text of the Treaty, we say, does not prevent that from occurring.

MS EASTMAN:  I have seen in the Combined Second and Third Periodic Report that you provided to the Royal Commission with the November paper, at paragraph 15 on page 3, that the Australian Government does not propose to withdraw the declarations.  Does that remain the case that the Government's position is that the declarations should remain?

MS ROBERTSON:  At this time, that's correct.

MS EASTMAN:  What can you tell the Royal Commission about the work done by the Australian Government in giving a careful and comprehensive review and understanding about the impact of these declarations on meeting Australia's compliance and also implementation?

MR WALTER:  What I can say is that one of the things that we use the treaty reporting process for     and this applies to all our international obligations, not just the CRPD     is to give consideration to any declarations or any reservations that we have in relation to those treaties, that we do give them consideration as part of the preparations for both the report that we provide, and you have referred to the one that we submitted to our most recent cycle review for the CRPD, but also ahead of the appearances that we make under those treaty bodies.  So some consideration was given at the time, including in some discussions with states and territories.

I don't think I would go so far as saying it met all those criteria that you set out in your question, but we do turn our mind to these things and as an example, not so long ago we took away the reservation we had under CEDAW in relation to women serving in the military in combat roles.  So they are things that are periodically reviewed and revisited.

But at this point in time, the Australian Government's position     that's all I can say, because I would have to go to the ministers, obviously     is that we will retain those interpretive declarations.

MS EASTMAN:  Mr Mansfield, has the Department of Social Services and the work done for the National Disability Strategy had the opportunity to review and understand the impact of the interpretive declarations?

MR MANSFIELD:  That's not within my direct knowledge, but we can see what we could provide in relation to that.

MS EASTMAN:  Has the question of the interpretive declarations been considered by the focal point in government concerning the CRPD?
 

MR WALTER:  You will be aware that Australia nominated two focal points    

MS EASTMAN:  Yes.

MR WALTER:      under the CRPD.  So one is the Attorney General's Department and the other, it was originally a different department but it is now the Department of Social Services.

As far as the Attorney General's Department focal point is concerned, which predominantly sits in my division, as I said, we do look at that as part of the treaty reporting process.  I'm happy to talk to that in a lot more detail, if you would like, in relation to the CRPD but, again, not at that level that you outlined earlier.

MS EASTMAN:  I turn now to the Australian Government's approach to interpreting and understanding the CRPD rights.

CHAIR:  Before you do that, I would like to be a little clearer about the process leading to the interpretive declarations.  I take it that the reason for making these declarations about the three particular articles is that somebody formed the view that, on one interpretation of these articles, they might have the effect that is addressed in the interpretive declarations; is that right?

MR WALTER:  Thank you, Chair.  So I might refer you again to the National Interest Analysis that I referred to earlier, which again we will provide a copy if it's not available already, which actually goes through that in some degree of detail.  And, yes.

So during the various consultation processes that occurred, and there were basically three     one with state governments, one with the Commonwealth Government and one with the broader community, particularly targeting the disability community     a number of issues were raised where it was thought sensible to make some clarifications.  They are set out in some degree of detail in the National Interest Analysis.

What is interesting, I think, or may be interesting to the Commission, is some of those suggestions were made also by the disability community in relation to two of those interpretive declarations.  So historically there seemed to be a consensus that those things were a little     potentially ambiguous in the text of the Convention.  It is worth just making it clear that that is our understanding of how it works.

CHAIR:  To follow up Ms Eastman's questions, presumably in order for there to be an interpretive declaration, there needs to be advice that the interpretation adopted in the declaration is tenable; is that right?

MS ROBERTSON:  Yes, I think that's correct.

 
MR WALTER:  Yes.

CHAIR:  Was such advice provided at the time the declarations were made or before the declarations were made?

MS ROBERTSON:  I can't tell you that personally but from a matter of regular process, Chair, I can imagine it definitely would have been sought.

CHAIR:  Thank you.

MS EASTMAN:  I want to ask you about the approach to interpreting or understanding the rights in the CRPD.  Are we right in understanding the two papers provided to the Royal Commission that, starting with international law, we apply the international legal rules, like the Vienna Convention on the Law of Treaties, in interpreting international human rights obligations?

MS ROBERTSON:  That's correct.

MS EASTMAN:  When it comes to the next step of incorporation and implementation, so we are bringing the international law into a domestic setting, what is the approach taken by the Australian Government in interpreting and understanding those rights for the purpose of translating them into a domestic legal setting?  Is it still the Vienna Convention on the Law of Treaties or something else?

MS ROBERTSON:  I'm not certain the Vienna Convention on the Law of Treaties would answer this question.  I think, Andrew, do you want to    

MR WALTER:  I'm not entirely sure what you are getting at, but I think the question is going to     we don't do direct incorporation in the sense that some other countries do, of just adopting the text as being the text that applies to Australia.  We look at    

MS EASTMAN:  Just stopping you there, we have done that with the Racial Discrimination Act.  Section 9 of the RDA just mirrors the Convention and the Convention sits at the back of the RDA.  So we have had examples of that process and this is why I'm asking, do you take wholesale what the international law says and put it into the domestic setting or is it a bit more nuanced than that?

MR WALTER:  With the greatest of respect, I understand what you are saying about the RDA.  Apart from the fact that we don't just adopt the Convention as it is     yes, we may use the words of the convention but we re enact it, the relevant provision, through the Racial Discrimination Act.

Wherever those words in the convention would be understood within the Australian legal system, of course we use those words.  But then we might make adaptations and changes to account for the legal system that we operate in, so it makes sense within that broader legal context.  Of course, we are all familiar with concepts of reasonableness within the common law world, so we might use those concepts  
instead of some other concepts in the convention.  We work through it on that basis.

We can talk about the concept of the margin of appreciation and those types of things, but we are trying to hew, and we need to constitutionally hew very closely to what those international obligations are.

MS EASTMAN:  Is it a difficult task?  I assume none of you are parliamentary draftspersons, but is it a difficult task to take the international law and find the best way of taking those international legal norms and making them part of domestic law, so they are going to work effectively?

MR WALTER:  It can be, yes.  It can be a difficult task, partly because     not always, but many international obligations sit at a level of generality that is way above what is necessary for there to be an effective law, so you need to take the spirit of what is being provided for in that international convention and then translate it into a mechanism that is going to work in Australian law.  So it can be quite difficult.

To give a very simple example, article 26 under the International Covenant on Civil and Political Rights is a very, very broad, as I know you know, a very broad provision that relates to anti-discrimination.  To translate that into domestic law involves a lot of thought and developing appropriate processes to give effect to that kind of broad discrimination right.

MS EASTMAN:  But we have seen that being done in relation to the functions of the Australian Human Rights Commission.  So the ICCPR is scheduled to the Commission's Act and acts and practices of the Commonwealth, that may be inconsistent, for example, with article 26 of the ICCPR can be the subject of a complaint.  There is no translation of that concept, is there, from article 26 into the AHRC Act?

MR WALTER:  No, that's quite right.  However, if you look at the     for example, as you know, the Disability Discrimination Act predates the Convention and it draws to some degree on those section 26 rights.  The Government's work at the moment on religious discrimination, there have been exposure drafts of that, draw on the article 26 rights.  Of course, just to     it's slightly a side point but I think an important point.  The Human Rights Commission Act incorporates by way of regulation the CRPD as well.  So those rights can be picked up through the human rights complaint process, which doesn't have the same results as a discrimination complaint, or the Commission can attempt to, I guess, conciliate and settle the matter but the only power it has at the end of the day is to report on the matter if it is a settlement can’t be reached.

MS EASTMAN:  What in terms of this process of understanding the international rights, which may be vague and aspirational in nature, how relevant is the ongoing work of, for example, a monitoring treaty body in developing general comments and those general comments then informing the way in which states such as Australia understand the nature and the content of the right?

 
MS ROBERTSON:  I think it's fair to say the general comments provide very useful guidance.  We will look at them each on their merits, I guess, and ascertain whether we agree with those.  Sometimes we do and I guess sometimes we don't.  But I think they can be useful and authoritative.

MS EASTMAN:  Is it the Australian Government's view on general comments     and we have asked you specifically on the CRPD general comments     that they are not binding on States but are, nevertheless, taken into consideration in interpreting the treaty and policy making processes and can provide useful guidance in considering actions to implement the CRPD?  Is that the Australian Government's position?

MS ROBERTSON:  In relation to interpreting the treaty, yes, we would look at those comments, but as I said --- so they would form part of our advice and we would assess what we think of those particular views.  But in relation to policy, I might let Mr Walter answer that.

MR WALTER:  Just to add, of course we look at general comments under all the treaties and conventions as we consider the relevance and applicability of Australian laws, so we will have regard to them.  They are not necessarily the most influential thing but, we nonethelessdo have regard to them.

MS EASTMAN:  If it was said, because of the detail in the general comments, that they rise above the actual right described, perhaps often in general terms, in the treaty, would you agree with that proposition, that the general comments in a sense overtake the underlying right?

MS ROBERTSON:  No, I don't think I would agree with that.

MS EASTMAN:  Can I come to some particular features of the CRPD.  I want to ask you about some of the sort of core concepts.  We have seen in the material that with the CRPD, the rights seem to be divided into those that are immediately realisable and those that have progressive realisation.

This is a topic covered by one of the general comments to the CRPD, but it is a matter we have asked you about.  So this is coming to topic 2, question 9 in the context of asking you about Australia's implementation of the CRPD.

We asked you in respect of the rights, what rights did the Commonwealth consider to be immediately realisable and which rights did the Commonwealth consider to be progressively realised?  Are you able to assist us in understanding how the Commonwealth characterises the rights in the CRPD as falling into the camp of immediate or progressive realisation?

MS ROBERTSON:  Yes, certainly.  The rights that we would consider immediately recognisable would concern, for example, equality and discrimination, prohibition against torture, liberty and security of the person, privacy, right to life; those more  
traditional civil and political rights.  But we would also consider, based on the language of the text, article 8 in the Convention concerning immediate adoption of awareness raising as one of those.  So they are some examples of immediately realisable rights.

MS EASTMAN:  What does that mean for Australia, when I have asked you earlier about compliance and incorporation and implementation?  Can you assist the Commissioners with respect to those immediately realisable rights, how are they in the Australian law practice and policy?  Can you give us some examples?

MS ROBERTSON:  Yes.  I will just first say that part of the policy reason why Australia wants to be in compliance with the Treaty prior to ratification is so it can be said to be in compliance with these immediately realisable rights.  There is a couple of ways domestically that Australia has implemented its obligations, and I know you would be very familiar with those.  The Disability Discrimination Act is probably one of the biggest ones.  But, as we said, there is a range of policies and programs at the state level as well.

The National Disability Strategy is also an important part of our implementation of the Convention rights more broadly.  A number of the civil and political rights are contained in a whole variety of legislation and they would be in criminal law, for example, and things like that.

MR WALTER:  We can point to a whole range of other examples.  For example, article 22, the Privacy Act, applies in that instance and it specifically picks up the categories of sensitive personal information that are identified in the convention and provides them with additional protections under that Act.

We have mentioned the Disability Discrimination Act and, of course, the states and territories all have a range of protections as well that are relevant.

MS EASTMAN:  On this question of rights that are immediately realised, are we right in understanding that you are thinking about those rights in the concept of traditional views of civil and political rights, which is that governments don't have to do a lot to ensure those rights might be protected?

I gave the example earlier this morning of freedoms.  If you leave a person alone to exercise their freedom of assembly, their freedom of movement, then the rights are protected.  Are you seeing immediate realisation in the concept of doing not much more than leaving the person alone to go about their business?

MR WALTER:  That is of course, we interpret how we apply rights in the broader context of our overall legal framework and structures, and this is an issue that we confront when we come before treaty bodies that tend to be European based and don't like that as a starting point.  So, yes, of course that is a factor.

But, of course, the Convention also required us to positively remove certain types of  
laws as well and make sure they didn't exist.  As I understand it, that was part of the exercise that was undertaken before the Convention was entered into, to check that those laws were not in place.

MS ROBERTSON:  I was just going to add that the CRPD does also have some categories of rights which don't easily fit into either/or, so that's an example.  When the Commonwealth signs up to these rights, it is a recognition of the interplay between the systems of rights.

For example, if we look to article 21 on freedom of expression and opinion or we look to the right to participate in public life and political life, those articles, they are traditional civil and political rights but there are accessibility provisions within those rights which require recognition that persons with disabilities will need accessible information to understand public information or they will need facilities, information and procedures when they go to vote.  So I just make that point that there is an interaction between the accessibility provisions in some of the more traditional rights.

MS EASTMAN:  I am conscious of time.  I want to turn to progressively realisable    

CHAIR:  I think the schedule calls for a short break.  Do you wish to have that now or do you wish to continue?

MS EASTMAN:  Can I finish this topic and then have a break?

CHAIR:  Yes, sure.

MS EASTMAN:  On the concept of such rights that are progressively realised, that is a concept we see in the economic, social and cultural rights arena, particularly from the International Covenant on Economic, Social and Cultural Rights.  The understanding of progressive realisation is that the commitment to complying with and implementing that right will be ongoing, but it is a commitment that means you can't go backwards.

There is an aspect of the Commonwealth's Background Paper which I want to ask you about.  So if you’ve got the first Background Paper from 16 June last year, paragraph 4 on page 2 says this:

Implicit in the concept of progressive realisation is that States Parties are obliged to achieve continuous improvement of conditions over time without backward movement.

I don't think that is controversial.  But it is the next bit I want to ask you about:

Any retrogressive measures require careful consideration and full justification with reference to the totality of the rights provided for in the relevant  
convention and in the context of the full use of maximum available resources.

Do you accept there seems to be an inherent contradiction between the first and second sentences?

MS ROBERTSON:  I can understand how it might seem that way, but perhaps I'll just unpack it a little.  I think the concept of retrogressive measures has to be understood in the broad.  So, both the ICESCR Committee and even our parliamentary Joint Committee on Human Rights have recognised this in its guidance.

The vastness of economic, social and cultural rights and the programs that they cover inevitably means the government is in the business of making the most expeditious and appropriate use of the resources it has across a whole variety of various needs that are in the community.

Justifiable retrogressive measures goes to where you may make an amendment to some of your economic or social programs, for example, which has an individualised or a negative impact on a cohort, for example, but when you look at the totality of what government is attempting to achieve     for example, with the social security reforms     it is viewed as acceptable and justifiable.

So the coverage is so wide across so many programs and policies, there may be instances where a policy reform could be said to be a step backwards, but the government, if it does that, has to justify it in terms of the whole.

An example might be a change to Medicare or a change to social security in which payments are changed.  It could be argued that has a disadvantage for a particular group or set of persons.  But overall the policy intent and impact is such that it is intended to provide greater coverage for more people in another area, for example.

MS EASTMAN:  That might sit quite well with looking at ICESCR alone, but with the CRPD, that strict distinction between civil and political rights, economic, social and cultural rights is not a feature of the CRPD.  So how is it that the ICESCR model really informs the way in which the CRPD should operate with respect to progressive realisation but not going backwards?  It seems to be a different framework.  Do you accept that?

MS ROBERTSON:  I think about it a different way.  I think I accept that CRPD has a range of rights, some of which fall into civil and political, some of which fall into more traditional economic and social and some of which are a hybrid.  But the fact that the Convention itself in article 4(2) talks to progressive realisation of economic, social and cultural rights indicates that the drafting and the intention behind it was very much to bring with it, if you like, the jurisprudence and understanding of economic, social and cultural rights into this convention.

MS EASTMAN:  Do you accept, related to that, that the principle of progressive realis 
ation is not unbounded or an elastic prerogative for states to choose when they are going forward or when they might go backwards or it is their discretion to say, well, we are going to progress at this rate or that rate?  It is not a general discretion, is it, for states as to how they meet their economic, social and cultural rights obligations?

MS ROBERTSON:  I think about progressive realisation about the when and I think about the timeframe involved, not so much the how, which is more to do with the other topic that we will get to.  So I would say you are right in the sense we have to obviously implement our treaties in good faith and that requires a certain expeditious moving forward.

MS EASTMAN:  To finish on this point before we have a break, is the concept of margin of appreciation or, an expression used in the paper, margin of discretion, relevant to the Australian Government's understanding of meeting the progressive realisation category of rights?

MS ROBERTSON:  I see them as about different things.  So progressive realisation goes to the timeframe allowed to achieve something, because there is a lot of resources involved and it is complex.  Margin of appreciation goes to the how, how we do things, and international law is not overly prescriptive here.  It has to account for a variety of legal systems, a variety of ways of doing things, so it doesn't really go into the how, and that is more what the margin of appreciation is concerned with.

MS EASTMAN:  You have said in the paper of 1 November at paragraph 13, that the margin of appreciation doctrine is most well known for its application in the case law of the European Court.  You have noted that this is about deference that is made to national decision making.

How relevant is the margin of appreciation to Australia's obligations under the CRPD where Australia is not accounting to any international court?  I want to understand the relevance of this concept which is applicable to European jurisprudence and the European Court structure, as to how and why margins of appreciation have any work to do with the ICCPR?  Can you help me on that?

MS ROBERTSON:  Could I ask you to repeat the paragraph number?

MS EASTMAN:  Paragraph 13 on page 4.  Ms Robertson, this is still in your area.

MS ROBERTSON:  Yes, thank you.  The margin of appreciation doctrine, yes, it does feature in the European case law and obviously we are not strictly bound by that.  But we also find it a feature of international law more broadly and we find the UN committees, the treaty bodies responsible for economic, social and cultural rights and the CRPD Committee also making reference to it.  So it is not simply something from Europe but it has found its way, I would argue, into general principles of international law.

MS EASTMAN:  Looking at footnote 12, you have given to the Royal Commission  
cases from international economic law, EC Measures Concerning Meat and Meat Products, as an example.  I have read that case and I'm not sure I understand its relevance or how that could be a helpful authority to assist this Royal Commission understand the relevance of margin of appreciation.

When we have looked at the CRPD Committee, we accept that there is one optional protocol case that refers to the margin of appreciation, but I really need to understand the basis on which this proposition is put by the Commonwealth, including, if you can help me, the relevance of EC Measures Concerning Meat and Meat Products from 1997.

CHAIR:  Why don't we take a break and you can have a quarter of an hour to think of an answer to the question and we will come back in a quarter of an hour.  It is now 3 o'clock.  We will meet again at 3.15.

MS EASTMAN:  Thank you, Chair.

ADJOURNED    [3.01 PM]

RESUMED    [3.15 PM]

CHAIR:  Ms Eastman, we were about to invite an answer from Ms Robertson.  Ms Robertson, you were about to answer the question put by Ms Eastman.  Do you need the question repeated or do you remember it?

MS ROBERTSON:  I think it would be good to have it repeated, just so I'm clear.

CHAIR:  I will ask Ms Eastman to do that.

MS EASTMAN:  I can't be sure I will repeat it in the exact words.  The essence of my question was the relevance of the margin of appreciation.  Looking at the response to the Royal Commission's question, at footnote 12 is what seems to be a case in support of margins of appreciation and deference, the EC Measures Concerning Meat and Meat Products (Hormones) case 1997, and I do not understand the relevance of that decision to the way in which the margin of appreciation applies to the CRPD.  That is at the end of paragraph 13, into paragraph 14.  It just seems not to be something that sits neatly, if I can put it politely like that.

MS ROBERTSON:  Thank you.  I understand what you are saying.  I think there are a couple of pieces to this.  One is how this principle has turned up in international courts and in the UN committees and how they look at it.  I think in paragraph 18 to 20 we just give the examples of how the ICESCR committee has talked about the margin of appreciation.  In relation to more of our domestic setting in Australia, I am minded to provide some more information to you.  But I think where it could be  
relevant, for example, is where we are talking about the constitutionality of an activity and having a relevant head of power, for example in relation to external affairs, the sort of test in relation to whether a measure is appropriate and adaptive to the convention, but I would like to check that for you and perhaps assist the Commission in that way with some more information about how our High Court has drawn on those types of principles.

MS EASTMAN:  Thank you.  I am conscious of the time.  There is a fair amount that I want to cover.  So I will do my best to work through it.

The next topic is the Australian Government's view on the concept of equality.  You have set this out in response to our questions for the November paper, starting at page 6 and then over from pages 7 and following.  Am I right in understanding that the Australian Government does not have a view on whether a concept of transformative equality is a concept in the CRPD?  Am I right in understanding that?

MR WALTER:  I'll take that one.  Thank you for that question.  I think the --- I think you are aware that in General Comment number 6, the CRPD Committee adopted the idea of inclusive equality, which picks up the work of Sandra Fredman on transformative equality and identifies those kinds of four dimensions to inclusive equality.  I think that --- I'm not exactly sure how that term is useful, I suppose, in the convention --- to start talking about the convention that way.  It's a nice way of framing and describing aspects of the Convention and the fact that, given that "equality" is used in kind of, well, I count three and some people count four different ways throughout the convention and sometimes a little inconsistently, it does provide some kind of overall framing for the convention.  But from a strictly legal perspective, I'm not sure that it has any work to do.

MS EASTMAN:  Can I draw your attention to paragraph 37 on page 10 in particular, and this is the basis of my question:

No, the Australian Government does not have a position on whether the CRPD incorporates transformative equality.

Then there is a reference to article 3.  I want to understand what that means, when Australia doesn't have a position on it.  Does it mean Australia is agnostic, it could or it could not, or is it that Australia has not taken that step of thinking about equality in transformative equality, that Australia's thinking is still very much in the notions of formal and substantive equality or direct or indirect discrimination?  That's the basis of my question.  I'm sorry I didn't make that clear.

MR WALTER:  It may be more that I didn't answer that very clearly.  I think there's --- what I'm struggling with, to be honest, is what work does this concept do for the purpose of the Convention?  So I think it's a useful descriptive term to describe what the overall Convention is delivering throughout all its articles.  But then if you try and read that back into the individual articles that you identify those four dimensions that Fredman has identified and you try to read them back into each of the  
conventions, I'm not sure that the Convention supports that on its terms.  So I think as a framing concept, personally I prefer the inclusive equality concept, I think that's more intuitive for people than transformative.  But I don't know that it has --- it may be a good descriptive term for the Convention but we don't have a view on that.  Certainly we wouldn't say that the Convention --- that there is some concept called transformative equality that the Convention is a legal obligation under the Convention.  I hope that's clear.

MS EASTMAN:  Have you read the research report published by the Royal Commission prepared by Rosemary Kayess and Therese Sands?

MR WALTER:  Yes, I have.

MS EASTMAN:  They talk about transformative equality at page 29 and they describe it in this way:

It is about changing the structures and systems with a variety of positive measures.

As I understand transformative equality, it is acknowledging underlying power relations that give rise to ableism; and simply thinking about equality as treating people the same or treating people differently to achieve the same outcomes, that substantive model of equality, is not going to work for people with disability; that to achieve equality --- whatever that means --- it is about changing the structures and systems around the person, rather than implementing measures for the person personally.  That's my understanding.  Ms Kayess will tell me if I'm wrong in that.

So if that idea of transformative equality is part of the CRPD then don't we have to engage with that concept?  Or are you saying that's the same as inclusive equality?

MR WALTER:  So there's a few different questions in there, I think.  To start with the last one first, the general comment uses "inclusive equality" as the descriptor.  It then just adopts Fredman's structure of transformative equality.  So I'm not an expert in this field but I imagine that the two are the same thing, at least in Fredman's conception.  I'm not sure whether Rosemary Kayess' conception goes beyond what Fredman is concerned with, I can't speak to that, I don't know enough about the literature.

I think that if the point is to say that, for example --- and I think this is the example that Rosemary and Therese use in their publication, the research they did for the Commission --- if the proposition is to say, if we take a right like the right to life, it is not just a hands off right of saying, "Oh, well, as long as we don't harm them, it's okay."  Actually, for some people with impairment it's an obligation to provide conditions that will sustain and support life in some circumstances.  And I think we would be comfortable with that as a characterisation.  But if we are talking about something that goes beyond that, and those terms you just used, I think you asked  
Rosemary Kayess about those very ones, to give some more practical understanding of them, I'm not sure I quite understand what the practical implications of that are so I wouldn't want to comment on it.

MS EASTMAN:  We also asked you about the Australian Government's position on the concept of discrimination.  One of the aspects we asked you about was whether the Australian Government accepts that the CRPD picks up the concept of intersectional discrimination or multiple discrimination.  Are we right in understanding that the Australian Government accepts that proposition?  Again, if it assists you, this is from page 10, paragraph 39 through to paragraph 42.

MS ROBERTSON:  I think that is right.  We recognise that the convention text itself does not address intersectional discrimination, although --- and by that we mean where a person is subject to multiple forms of discrimination, such that they become indistinguishable --- but the Convention does make reference to the challenge, if you like, of multiple discrimination, particularly in article 6, but probably more broadly where it recognises that girls and women, for example, may face multiple forms of discrimination.

MS EASTMAN:  I think there's an acknowledgment, isn't there, in paragraph 42 that the Commonwealth anti-discrimination laws do not facilitate an individual bringing a complaint in relation to multiple attributes.  So a person would have to bring, for example, to use Ms Robertson's example, both a Sex Discrimination Act complaint and a Disability Discrimination Act complaint, but those Acts don't speak to each other to see how that is integrated and intersectional.  They are separate pathways.  Is that right?

MR WALTER:  That's correct.  The only thing that I think is worth adding is that under the Australian Human Rights Commission Act it is possible to bring the two complaints, I guess, together and they can be considered together, but as a sort of at the same time type of concept rather than, as you say, the two Acts won't necessarily speak to one another.

MS EASTMAN:  Can I put it this way, without getting into the nitty gritty of it.  Both those Acts require an analysis of causation and so we don't have a mechanism that if the causation of discrimination is a combination of factors working, that the stand alone Sex Discrimination Act and Disability Discrimination Act will not allow that causation analysis to be a combination of both.  That's the gap, isn't it?

MR WALTER:  Well, I actually think the bigger --- with intersectionality, if we take sex discrimination or disability discrimination, it only has to be one of the grounds on which the person was discriminated against, it doesn't have to be the whole ground.  So in an instance where somebody is both disabled and Indigenous and they were discriminated against, it doesn't matter in a sense which one of those is considered the basis for the discrimination, or it could be both.  It just has to --- the disability aspect just has to be one of the grounds, the race discrimination just has to be one of the grounds.  So it's not like the combination gets you another ground.
 

I think what is --- it is a tricky remedy, where you have got a circumstance where you've got that combination of factors, I think the fact that they don't talk to each other there is perhaps a bit more complicated.

But I do think, coming back also to the Convention, the critical requirement in the Convention is to make sure there are no barriers to somebody who happens to be disabled within the meaning of the convention to bring a discrimination claim on the basis of race, if that's applicable, and that is certainly the case under Australian law, that there are no ---

MS EASTMAN:  Can I put this proposition to you: if you accept that the CRPD has a model of intersectional discrimination, and if you accept the Australian Government's position that the discrimination right is an immediately realisable right, then Australia is not compliant with the CRPD when it comes to incorporating and/or implementing protections against intersectional discrimination, with the current federal discrimination laws.  Do you accept that?

MS ROBERTSON:  I think we said the Convention does not expressly provide for intersectional discrimination, so we don't accept the premise of what you are saying.

MS EASTMAN:  So it is based on the premise that the convention isn’t interpreted, as picking up concepts of intersectional discrimination?

MS ROBERTSON:  That is correct.

MR WALTER:  That is right.  We see the obligation as being to remove barriers to people being able to bring a claim for other grounds of discrimination, not to address intersectionality.

MS EASTMAN:  Can I ask you now about reasonable accommodation, which is one of the core elements of the CRPD.  As I understand it, Australia appears to agree in the Background Paper that the duty of reasonable accommodation is an obligation that applies immediately rather than one that is progressively realised.  Is that right?

MS ROBERTSON:  Yes, that's correct, in terms of where an individual makes a request for a reasonable accommodation that meets the test of resources, and so on.

MS EASTMAN:  That is my second element.  Looking at the concept of reasonable accommodation, is it the Australian Government's approach to the CRPD that reasonable accommodation applies on a person by person case by case basis, rather than the concept of reasonable accommodation having a more global or umbrella operation?  Do you understand that distinction?

MS ROBERTSON:  Yes, I do.  I would say that it operates in both ways under the Convention.  For example, when we are talking about the way in which refusal of a reasonable accommodation can equal discrimination under the convention, we are  
talking about individual requests for reasonable accommodation.  But when we are talking about the broader accessibility provisions, if you like, which are longer term, in our view they are progressively realisable.

MS EASTMAN:  Looking at the definition of "reasonable accommodation" in article 2 of the CRPD, reasonable accommodation means necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case to ensure persons with disabilities the enjoyment or exercise on an equal basis of all other human rights and fundamental freedoms.

So, can I suggest that is an example of international law language that is not necessarily accessible tothe Australian legal framework, these concepts of disproportionality or undue burden.  Do you accept that?

MS ROBERTSON:  It might be useful to look at how the Disability Discrimination Act interprets that provision.

MS EASTMAN:  That is what I'm about to ask you.  If we go to that, article 2 is not directly in the Disability Discrimination Act in these terms.  That's correct, isn't it?

MR WALTER:  That's correct.

MS EASTMAN:  In the Disability Discrimination Act, is this where we see the manifestation of the incorporation of the concept of reasonable accommodation in Australian law?

MR WALTER:  Obviously, as I mentioned earlier, the Disability Discrimination Act predated the Convention.  But yes, the Act requires the provision of reasonable adjustments in consideration of both direct and indirect discrimination.

In our view, if we just stick to the semantic level for a moment, then the concept of reasonable adjustments, we think is     broadly, I would say it is broadly consistent with what is provided under the Convention and, indeed, in some ways is probably more generous than what is provided under the cCnvention, particularly around those modifiers that is    

MS EASTMAN:  Can I put a couple of propositions to you?  To the extent that the concept of reasonable adjustments reflects reasonable accommodation, in the Australian law it is part of the definition of disability discrimination not a standalone separate or positive obligation.  Would you agree with that?

MR WALTER:  Not entirely.  In the discrimination context, of course, we have built in that reasonable adjustments requirement.  But there is also the disability standards, for example, in areas like transport and access to premises, which get to that broader concept of reasonable accommodation that Ms Robertson was talking about earlier.

MS EASTMAN:  They have different meanings, don't they?  In the Disability  
Discrimination Act, the concept of reasonable adjustments is part of the definitions of discrimination.  In the transport standards or other standards, it has different work to do.  Do you accept that?

MR WALTER:  I do.  I think they are both     they are both trying to get to the same space, in the sense that you want people to be able to engage in life on the same basis as everyone else.  But they are two different tools to get there.

MS EASTMAN:  But having the concept of reasonable adjustment in a definition of discrimination, not in the operative parts, means that reasonable adjustment is only going to be relevant if the adjustment would result in a person not being treated less favourably for direct discrimination or a person with the adjustment meeting a condition or requirement for the purpose of indirect discrimination.  So in that context, the concept of reasonable adjustment is tied to the definitions of discrimination, but not to the operative parts or areas where discrimination might arise.  They are definitional.

MR WALTER:  Well, I'm not sure --- sorry, I suspect I'm fundamentally missing the point that you are trying to make.  But the way the Act is set up in relation to the discrimination provisions is to say that there are two bases on which people may be discriminated against, one is indirect, one is direct, and then of course we saw the areas of public life in which discrimination might occur.  And in both instances it tries to say that you need to provide --- if you don't want to be found to have discriminated against someone, you need to have provided for reasonable adjustments, and if you haven't, then that opens up the prospect that you may have been discriminated against.  So it is trying to get away from that idea of saying, well, I haven't discriminated against you because --- we have got stairs at the front of the building, and the same stairs apply to everyone.  So it's trying to get around those kinds of arguments by saying you must provide reasonable adjustments and if you haven't, you are exposed to a potential discrimination claim.

MS EASTMAN:  If I take your example, if there's a requirement to use the stairs to enter a building then the way in which reasonable adjustment has been interpreted is that the reasonable adjustment must enable you to climb the stairs.  That's the way the law has been interpreted, not a reasonable adjustment to provide a different level of access, a comparable level of access.  You see that in the standards but not in the Act --- in the Disability Discrimination Act itself.  Do you accept that?

MR WALTER:  I think that the --- so the Act is --- in your first example, it's really trying to say, well, I'm trying to access a service, let's say a bank as an easy example, and I can't access that service because I can't get into the building, and so the bank should take whatever steps are reasonable to allow that person to get access to the building.  It doesn't --- you are quite right in that instance it's not putting that kind of proactive, you must make sure that your building is accessible --- that is dealt with in the standard.  However, of course, the person could be found to have been discriminated against an individual or a group of individuals if they haven't provided for that access as well.
 

MS EASTMAN:  Part of the question really turns on how the courts might interpret these definitions.  In your experience, have the courts had regard to the international law framework in understanding the concept of reasonable adjustments or reasonable accommodation?  You might not be able to comment on that but if you ---

MR WALTER:  No, I can't.  I don't know whether they have or not.

MS EASTMAN:  The concept of reasonable adjustment in Australian law, we understand that the adjective "reasonable" is irrelevant, that it is any adjustment to the point that adjustment imposes unjustifiable hardship.  That is the way it operates?

MR WALTER:  Yes, that's a fair summary.

MS EASTMAN:  Is the unjustifiable hardship intended to reflect disproportionate or undue burden, being the language in article 2?

MR WALTER:  We would say it is a harder test to get over than the test in the Convention.

MS EASTMAN:  That was the intention?

MR WALTER:  I would have to go back and look at the legislative history.  I don't know off the top of my head.  I'm happy to provide further information on that and find out what was the intention at the time.

MS EASTMAN:  These were amendments that took effect on 5 August 2009, so this is when the concept came into the federal law.  So it was intended, wasn't it, to reflect the CRPD, the effect of ratification of the CRPD?

CHAIR:  Ms Eastman, I think the concept of intention here may be a little ambiguous.  Are you referring to the subjective intentions of the government of the day, the advice that was received or intention in the sense of which courts use that as a matter of construction?  I think we need to clarify.

MS EASTMAN:  Intention reflected in perhaps the explanatory memorandum and the process of introducing the amendments to the law, that the CRPD had been ratified, so the intention was to amend the Disability Discrimination Act to give effect to the CRPD obligations.  Is that right?

MR WALTER:  That's my understanding.  But I would like to go and check that and I will provide advice.

MS EASTMAN:  Thank you.  All right, I will leave the Disability Discrimination Act to one side.

Yesterday and this morning, the Commissioners have heard about a dialogue model  
of human rights and one of the aspects including parliamentary scrutiny.  At the Commonwealth level, we have a process of parliamentary scrutiny in relation to proposed Australian laws, and Professor Byrnes spoke about that yesterday.

In your experience, what is the relevance of parliamentary scrutiny with respect to the CRPD, and do you have a view on whether that process has assisted or hindered in some cases the steps to comply with the CRPD?

MR WALTER:  Obviously the parliamentary scrutiny process --- there are a couple of elements to it --- the establishment of a parliamentary Joint Committee on Human Rights, which I think is a really important and significant development, and obviously the obligation on the Committee to consider all bills and some legislative instruments that come before it, as well as the requirement to provide statements of compatibility.  I think that it would be difficult for me to say what has been the impact specifically in relation to the CRPD.  I think that the broader impact, and I think Professor Byrnes would have spoken to this, I think it has enriched the discussion and dialogue in relation to human rights within the parliament.  And if you read through the reports from the committee, they are quite rich and they do have a real engagement with the various rights and issues that come up.  My experience has been with most parliamentary committees, they are --- they take their role very seriously and do seek additional information and guidance.

I think it would also be fair to say that that process has been criticised at times as well and I think there are two broad criticisms that are made of it in the kind of commentaries on the scheme.  One is timeliness, it goes to the timing of its considerations.  Sometimes, particularly virgin legislation, the committee won't report until after legislation is passed, for example, and an associated criticism is that it comes too late in the process.  Most of the critical decisions have already been made, is the argument.  Then the second criticism has been around the practice of the committee to take that more discursive approach rather than reaching a definitive conclusion in some of its reports, although I think there are arguments that go both ways on that particular point.

MS EASTMAN:  There is also a statement of compatibility process ---

MR WALTER:  That's right.

MS EASTMAN:  --- and we asked the ACT representatives this morning about the role of the ACT Attorney General preparing a statement of compatibility.  Is that the role within Attorney General's at the Commonwealth level to have that oversight of all the bills to prepare a statement of compatibility?

MR WALTER:  No, we don't.  However, we do a couple of things.  When the legislation was initially passed, we provided training to all government departments who prepare legislation on meeting the obligations of statements of compatibility.  The Office of International Law will from time to time provide advice to assist departments and we provide guidance through our website on how to prepare them,  
and every now and then, more on an ad hoc basis I'd say, we assist departments who are struggling with that task, we assist them through the Human Rights Unit to prepare those statements.

MS EASTMAN:  I want to ask you now about the Australian Government's development of a focal point.  This picks up a concept in article 33 of the CRPD.  Is our understanding correct in this respect: that the idea of a focal point is to draw together and coordinate the work that needs to be done across governments and that might be in a federal system like our system at a national, state and territory level and to bring together all of the work at a legal, policy, practice level to be that point that has got ultimate responsibility for the CRPD implementation and/or incorporation.  Is that how the Australian Government understands what the focal point is?

MR WALTER: Article 33 is a little challenging because it creates a range of mechanisms. It creates focal points, coordination mechanisms, it talks about the framework monitoring and then engagement with civil society and there is almost no guidance about what is expected from a focal point or that coordinating mechanism.  So the description you have just given, I think, we would say probably conflates a couple of those things together, which I don't think is a major problem.  So we have two focal points, one is this department, the Attorney General's Department, one is the Department of Social Services, so I will let Mr Mansfield talk to how he sees his aspect of the role.

The critical bits for me are our part of the role look like this: that we are the central point of engagement with the treaty process, we coordinate all --- we coordinate the reports that we make to the CRPD, the Committee, we engage with civil society as part of that, including making those reports available publicly for comment, we support civil society to engage with the treaty process, we coordinate our appearances --- you mentioned earlier that I headed Australia's delegation to the last appearance, that's correct.  We then have a role in advising all relevant departments and agencies, including at the state and territory levels, about the concluding observations and including the recommendations that have been made and we also have a standing mechanism which consists of     I chair the standing mechanism, which consists of a range of other departments and agencies, with the Human Rights Commission as an observer, to facilitate that process as well.

In addition, as we have already mentioned, the Office of International Law provides legal advice and handles the complaints aspect of our engagement with the Convention.  So that's what we see as our part of the focal point role.  I'm not sure if Mr Mansfield has anything to add.

MS EASTMAN:  Mr Mansfield?

MR MANSFIELD:  In relation to one of the key pieces of work that was led out of the former Department of Social Services, its predecessor was the development of the Disability Strategy, which was intended to be a high level or is a high level policy framework to guide government activity across mainstream and disability specific areas of public policy, and so I think as part of your questioning you talked about drawing together and coordinating the work that needs to be done.  And so to the extent that it does provide some coherence to and guidance to that work, the National  
Disability Strategy plays that role.  It also drives improved action and performance of mainstream services and of course there were three implementation plans developed as part of that strategy and also reporting back against that strategy.  So the Department of Social Services certainly has coordinated with the states and territories some of that work.  Each department at both the Commonwealth level and the state and territory level is responsible for and accountable for implementing actions that give effect to the progressive realisation of the Convention.  But the department has certainly played a role in helping to coordinate and provide public visibility of those activities.

MS EASTMAN:  The role of     I'm looking at the now completed National Disability Strategy, there are a number of references to the CRPD in the strategy.  But it says, for example, the Commonwealth, states and territories have assessed the extent to which their legislation, policies and programs comply with obligations in the Convention.  Was that something that you were involved in, whatever the process was, to assess the extent of legislation, policy and program compliance?

MR MANSFIELD:  No, I was not.  I have only been in this role for around three months.  But I think it goes to some of the issues that Mr Walter talked about, the process that happened prior to ratification.

MR WALTER:  I think that's right.  You are looking at the 2010 to 2020, so yes, that was referring to the process I was talking about earlier, where the Attorney General's Department led consultations with all states and territories about their compliance with the convention and where all states and territories, my understanding is, concluded that they had met the immediate obligations and had substantially met the ongoing obligations at that point in time.

MS EASTMAN:  Am I right in understanding that one of the objectives of the National Disability Strategy was that that process of assessing legislation, policies and programs was not just a one off, at some time prior to July 2008.  It's an ongoing process, is it not?

MR MANSFIELD:  Yes, I think it's fair to characterise it as that.  Certainly there have been lots of examples of policy change since the commencement of the Disability Strategy that go to the progressive realisation of the obligations under the convention.  For example, the establishment of the National Disability Insurance Scheme, the increased Australian Government investment in improving outcomes for people with disability through the quality schools package, there has been the establishment of the information linkages and capacity building programs, the new Australian state and territory disability inclusion plans.  There's a whole range of action and activities that have occurred throughout the life of the Strategy that demonstrate, I think, in a practical way that all governments are committed to continuing to improve, and it's not a set and forget point in time assessment of compliance.

MS EASTMAN:  I'm just keeping an eye on the time.  I just want to put a couple of  
propositions to you, drawing on state practice in relation to a focal point.  Do you accept that the state practice reflects that the focal point should be at the highest level of governments and if that's right, should the focal point not be centred in the Department of Prime Minister and Cabinet?

MR WALTER:  I'm not sure we’re in a position to accept or reject that.  I think that my understanding is that the practice is very varied.  In your tender papers, you pointed to that Danish study in relation to focal points.  I think that backs that up in the sense that there is little guidance from the Committee as to what a focal point should be, there is no     unlike, for example, the work of the Office of the High Commissioner on Human Rights around national mechanisms for reporting and follow up, there is no real criteria for what constitutes a focal point.  So I think if you are going to have a focal point, you want it to work so it is going to be effective, and I think that what we did when we nominated those two relevant departments was to say one department has a critical role in the legal framework aspects, another has the critical role in the provision of services and programs, and making sure that we were bringing those two together was the intention, as I understand it.

MS EASTMAN:  That reflects state practice, doesn't it, that it has to be more than just international human rights law expertise, but there needs to be specialised knowledge in how to operationalise human rights.  That's part of state practice with respect to the focal point?

MR WALTER:  Again, I think that state practice is not     if we are using that state practice as just a general observation, you could say, sure, some countries     I think countries are trying to do that, but I'm not sure if you are using it as a international law term, I'm not sure we have state practice around focal points.

MS EASTMAN:  Are there people with disability in senior roles with responsibility for this focal point work?

MR WALTER:  In the Attorney General's Department, we don't ask people to disclose whether they have a disability unless it is relevant to providing reasonable adjustments.  I can say that across the department, through our census, the ABS census that is conducted every year, 10 per cent of the department identifies as having an ongoing disability and that's    

MS EASTMAN:  I'm sorry, Mr Walter.  I'm not asking you about that.  I think I am going to ask Mr Mansfield about this in about two weeks time.  I just want to know whether or not there is someone with disability in a senior role for the focal point work.  Not a person who hasn't told you they have a disability but somebody with an identified disability.

MR WALTER:  Not that I'm aware of.

MS EASTMAN:  Is there someone in that role?

 
MR WALTER:  All I can say is no one has disclosed that to me.

MS EASTMAN:  Has there been any consideration that there needs to be a person with disability, assuming of course that they have the relevant leadership and experience, to be part of the work of the focal point?

MR WALTER:  There is no neat answer to that.  We are always trying to attract people with disability to work in our human rights area.  We think it is very important to have that lived experience of disability to inform our work.  But we also find other ways in which to try and bring those perspectives in as well, including through the consultation processes we go through throughout the treaty process.  I can talk through that if that's helpful.

MR MANSFIELD:  Just on Mr Walter's answer, the same is true within the Department of Social Services.  I can't confirm whether any of the senior personnel within the area of disability identify with a disability to the extent that they may not have disclosed it.  I'm certainly aware that there are senior people who have, for example, children with identified disability because they have mentioned it to me.  I know that around 6.6 per cent of employees within the department have identified, through the census process that Mr Walter referred to, have a disability and of course there is the APS disability employment strategy with a target of 7 per cent.

MS EASTMAN:  Mr Mansfield, I am going to ask you     we have about an hour and a half allocated to this topic in a couple of weeks' time.

MR MANSFIELD:  Very good.

MS EASTMAN:  My question is intended to be a very simple one: is there a person with an identified disability in a senior role working on the focal point work?

MR MANSFIELD:  Not to my knowledge within the Department.

MS EASTMAN:  Thank you.  Just a couple of questions     I'm mindful of the time, I hope the Commissioners will bear with me.  I want to ask you about the CRPD obligations extending to non government entities, be they corporations, partnerships, et cetera.  We asked you this at paragraph 25.  It is page 69 of the 1 November paper.  Your response is three and a half lines.  Is that the entirety of the Australian Government's response to that question?

While you are reading that, I will pose this question to you as well: is there a role for the UN Guiding Principles on Business and Human Rights to pick up CRPD obligations in the responsibilities for corporations in relation to human rights?

MR WALTER:  No, so perhaps if I can come at those two questions in this way.  Obviously in pure international law terms, the obligations are accepted by the state, and then the state party and then it is a matter for the state party to give effect to them.  Obviously, when you think about some of the things we have been talking about, in  
terms of discrimination for example, then of course we impose obligations on business and not for profit organisations with respect to giving effect to that obligation, because that's how you give effect to it in society.  So I think in that sense the formal answer is, well, we accept the obligations but then of course we have to implement them and implementation can involve imposing obligations or duties on corporations and others.

Then in terms of the next question around the Guiding Principles, Australia is supportive of the Guiding Principles and encourages businesses to engage with them.  We have done quite a lot of work with business.  I think you have heard a little bit about this in areas like modern slavery, reforming our national contact point and areas like that.  So, of course we think everyone has a role to play in giving effect to the Convention, but that's a very general proposition.  If you have a more specific question, I'm happy to engage with that.

MS EASTMAN:  The last topic I want to ask you about is how the Australian Government measures and evaluates its compliance with the CRPD in relation to the work of States, Territories, Governments, specific agencies and Commonwealth departments.  Is there an overarching strategy or a framework for evaluating compliance or is this just simply the work that you do in preparing periodic reports to submit to the CRPD Committee?  I am trying to truncate what could be a very large question there.

MR WALTER:  How about I give the general picture and then Mr Mansfield can speak in more detail.

We absolutely, as part of our reporting processes, engage in that activity of gathering information and data to support what we put to the Committee.  That has also resulted in us identifying at times areas where better data collection is required.  One example is in relation to the area of sterilisation where, following our 2013 appearance, we provided some funding for an annual report to be prepared through guardianship tribunals on sterilisation of adults with cognitive impairment, and that report is made publicly available each year.  So that is just a very small example where as part of that process we identified data gaps which were then     action was taken to try and address those.  That's kind of a very holistic picture and Mr Mansfield can talk more about the data collection strategy through the National Disability Strategy.

MR MANSFIELD:  In relation to the current National Disability Strategy, certainly there was collation of material from States and Territories and across the Commonwealth around activities that were undertaken as part of the strategy.  One of the pieces of feedback that has been received through the review that was undertaken by the University of NSW around the strategy, as well as through other processes, has been the need for better measures and clearer measurement of outcomes and certainly there has been considered effort since November 2017, when disability ministers initiated or indicated that they intended for a new Disability Strategy to be developed.  One of those particular things that was commissioned was for the  
Australian Institute of Health and Welfare to do some work around understanding what data points were available across government and that led to a publication called "People with Disability in Australia" which was released in 2019 and then updated in 2020.

There has also been the establishment of a pilot called the National Disability Assets Pilot, and further work around that to identify some test cases for how we could gather better data to measure outcomes within the NDIS.  There is an outcomes framework and there's a survey collection that is part of the process of reviewing people's plans to identify what outcomes they are achieving, so that in an aggregate picture you can get a sense of the level of achievement.  But it is fair to say that it is an area of ongoing improvement forever improvement around collecting better data, and of course in some areas it is difficult where people may not identify that they have a disability, and so some collection, we may not necessarily be aware that people have disabilities, so there is incomplete areas of data.  But certainly as part of the new Disability Strategy that is currently before first ministers for final endorsement, there is a significant component around outcomes measurement and data collection and intention for a data improvement plan that would see better collection, and some of that was co designed with the disability community and there was a paper published during the course of the strategy development around the overall approach that was intended to be taken, and certainly the feedback from the disability community was that they wanted stretch     they wanted to reflect as many measures as possible, even where data was imperfect or not currently collected, with a commitment to improve data collection over time.  And that's the approach that's being taken.

MS EASTMAN:  Is one of the issues that we don't have a single definition of "disability" in all of the areas where disability rights and interests may be affected?  We have different definitions.  Is that an impediment to collection of data, the absence of a national approach to what disability means?

MR MANSFIELD:  I might come back with further information if it would assist, because I'm fairly certain that the Australian Institute of Health and Welfare and the Australian Bureau of Statistics have done some work in this area to try to align definitions but it's not something I'm personally aware of.

MS EASTMAN:  That's all right, I don't want take you outside the areas that you know.  I will pass to the Commissioners.  I am conscious of time but can I thank you all for appearing at relatively short notice, and for your thoughtful and care in preparation your evidence today.  Thank you.

CHAIR:  Thank you, Ms Eastman.

Commissioner Ryan, do you have any questions?

QUESTIONS BY THE COMMISSION
 

COMMISSIONER RYAN:  Yes, I wanted to take you to pages 63 and 64 of your response where you explain what happens to the observations made by the Committee on the Rights of Persons with Disability, and it has a distribution list of people.  Then you explain that it is circulated to a bunch of ministers and government departments.  Then at paragraph 351 you say:

There is no requirement to directly respond to concluding observations immediately after ....

And so on.  You would be aware of the fact that the submissions made to the Committee are pretty scathing in their description of how they believe that Australia has performed, and even the Committee's concluding remarks are still pretty serious criticisms of Australia's performance on the CRPD.  Do you think that just distributing that to a bunch of departments and ministers is in any way ever going to achieve progress on any of those things?  Is that the way we would ever do anything in the public sector?

MR WALTER:  Thank you for the question.  It's not the only thing that happens.  In all cases, that is what happens, we make sure that that information is provided to everyone who needs to know about it so that they can take relevant account of it as appropriate.

COMMISSIONER RYAN:  You know what I --- (overspeaking) ---

CHAIR:  Go ahead and complete your answer.

MR WALTER:  Thank you, Chair.  There are probably two other things I will mention, and I appreciate we are pressed for time.  One is that as part of something called the Universal Periodic Review, which is a kind of global assessment of everything we do in the human rights space, Australia made a voluntary commitment as part of the development of the new National Disability Strategy to be informed by the most recent set of concluding observations by the Committee, so there is a process that they are being folded into that consideration, so I just make that point because I think that's important.  The other thing I would say is that individual recommendations do get picked up and considered.  So you would be aware that the committee in 2013 and 2019 was concerned about the indefinite detention of people with cognitive impairment.  Following the 2013 Concluding Observations, the process was undertaken with the states and territories to develop a statement of national principles on that, and a number of other jurisdictions have been     a number of the jurisdictions, States and Territories, because that is where the issue principally arises     I'm not trying to say the Commonwealth doesn't have a role, but that's where it principally arises     have been doing work in that area.  But they have taken into account those recommendations, so it's not a complete black hole as I think you are sort of suggesting that these just disappear into.  We have a general process and then particular conclusions and recommendations can be picked up and  
acted on, and there are examples where that has occurred.

COMMISSIONER RYAN:  The criticisms on article 14 was in fact a case in point.  I don't think you could get a more serious criticism of a country's conduct than we are incarcerating people on the basis of their disability.  I'm sure there's a bit of a process that you've just described that might have received reports from other people, but don't you think that that would be exactly the kind of thing that somebody very senior in the Commonwealth Public Service would want to make sure was not going to reoccur whenever the next review occurred, or that there would be some substantial progress on a matter like that?

MR WALTER:  So that matter was taken to     I think the name at the time was the Standing Committee of Attorney General, so it was taken at ministerial level and discussed.  So it is not that it was ignored.  There was ministerial discussions about it that led to the work that resulted into those statements and led to follow on work in the State and Territory jurisdictions, so I don't think it is right to say that it wasn't taken seriously.

COMMISSIONER RYAN:  I'll leave it at that, Chairman.

CHAIR:  Thank you.

Commissioner McEwin.

COMMISSIONER McEWIN:  Thank you, Chair.  Yes, I have three questions.  Again, I'm conscious of time.  Thank you, all of you, for your evidence.  My first question I will direct to Ms Robertson because I want to understand better your comments on article 12 and the interpretive declaration.  What we have heard in this Royal Commission so far, we have heard that substitute decision making systems are a denial of a disabled person's personhood.  So how do you reconcile that view with Australia's position that the CRPD allows for substitute decision making systems?

MS ROBERTSON:  I think it's a really important and difficult issue, can I just say that first, this issue, because it does touch on something at the heart of the Convention, and that is legal capacity and people's ability to make their own decisions.  But we are basing our interpretation here on a reading of article 12, which we say does not preclude substituted decision making.  That does not preclude policy discussions and how contentious this is, there are many views on this.  But I'm giving the position from a legal point of view that we think that article 12 does not prohibit this, with the appropriate safeguards.  That does not necessarily detract from the complexity or the problematic nature of this, and that's why I said that I think the Commonwealth recognises that these situations, particularly at the very extreme end, where it's difficult for people to express consent or express their view, and where they may be denied medical treatment on that basis, is very difficult and one in which we understand there are strong opinions both ways, but I'm simply advising from a legal point of view that the article as it stands there does not prevent  
substituted decision making as a matter of last resort and where those appropriate safeguards are in place under article 12(4).

COMMISSIONER McEWIN:  Thank you.  I'll leave it there for now.  I think we need to continue to look at that issue.  The second question is for any one of you.  We have heard from many witnesses, both in this hearing and in research reports, that the CRPD obliges states parties to dismantle systems that segregate disabled people from non disabled people.  We heard from people in the Royal Commission that segregated settings, such as in living, education and in the workplace, continue.  So how does Australia reconcile those two things?

MR WALTER:  Thank you, Commissioner.  I think it was a bit difficult for us to engage in the abstract.  I know that you have a particular interest in education and the continued relation of special schools.

COMMISSIONER McEWIN:  I will pause you there.  I am talking generally.  I don't have a particular interest, I'm interested in the CRPD in general.  But I respect your response.

MR WALTER:  Yes.  I think we are just finding it a little bit difficult to engage because we would say    

CHAIR:  Do you want to take that question on notice?  Because it does raise some general issues, and in fact we have canvassed over the last couple of days in many ways; if you want to it take that on notice, that's fine.  If you want to give an answer now, that's also fine.

MR WALTER:  Thank you, Chair, I think that's a good suggestion only because we would need to engage with different articles in the Convention which have different thresholds and tests, so we might have to think about how we might respond in a way that assists the Commission the most.

CHAIR:  We will certainly provide for that.  Is there another question?

COMMISSIONER McEWIN:  Thank you, Chair.

My final question to any one of you is, at paragraph 66 of your response dated 1 November     I'm not going to read it out, but I will just read out particularly what I'm interested to understand.  You say:

The Convention should be understood as a set of living commitments that ought to be continuously revisited as the understanding of disability develops and as attitudinal and environmental circumstances change.

Can you tell me what you mean by "attitudinal changes"?  Are you saying that attitudes in the community need to be changed?  Is your response to implementing the CRPD in the Australia contingent upon particular attitudes in the community, just  
to give you a bit of context to wanting to understand that paragraph better?  Thank you.

MR WALTER:  Thank you, Commissioner.  What we are trying to say there, and it was what I was talking about way back at the beginning of this discussion today, is very much saying that the Convention is dynamic in the sense that it has to operate in the world, and when we think about "a right", we may say     it's almost like the social model of disability, the "right" has to intersect with the environment in which it is operating.  So as technology changes, as society changes, as the economy changes, then we need to make sure that the protections or the services, or the supports we are providing also change to reflect that reality.  Otherwise we can't say that we are protecting those rights adequately.  To pick a relatively simple example, were there to be clear evidence that people's perceptions of a particular impairment was causing problems for people with that impairment, then that might be something that you would want to address as part of the Convention.  As attitudes shift and change, you might say actually that is an area we don't need to focus on strongly because that right is more easily enjoyed.

COMMISSIONER McEWIN:  Are you saying that if a nondisabled person perceives a particular disabled person's impairment as not requiring adjustment, then that you wouldn't be --- (overspeaking) ---  I didn't quite understand that part.

MR WALTER:  I'm sorry, Commissioner, I'm not being very clear.  It's part of the broader context in which a right is enjoyed.  If, as we do in all circumstances, if the right sits there and it's always there and we need to give effect to it, but in certain circumstances we need to take additional measures to make sure that right is enjoyed to its fullest and there are a whole variety of factors that might impact on the ability of a person to enjoy that right.

COMMISSIONER McEWIN:  I will leave it there.  Thank you very much, all of you.  Thank you, Chair.

CHAIR:  Thank you.  I just wanted to ask a question of Ms Robertson.  As I recall, you indicated that the Australian Government takes account of general comments made by the UN committee, but that sometimes the Australian Government agrees, sometimes it does not, and if it does not, it does not necessarily adopt the views of the committee through its general comments.  What would lead the Australian Government to determine that it does not accept what the UN committee has said in a particular general comment?  I'm not referring to any specific one, but just what are the criteria?

MS ROBERTSON:  We would do a legal analysis of what the committee has said and if, in our view, it went beyond either their mandate or what we consider to be the correct legal interpretation of the treaty, that's the approach we would bring.  So we would do a legal analysis of what has been said and see whether that accords with our views.

 
CHAIR:  I take it from your answer that it implies that on some occasions the Australian Government takes the view that the UN committee does exceed its mandate and does inaccurately interpret the convention?

MS ROBERTSON:  I think it's fair to say that there are times when we disagree, but I haven't got examples in front of me so I don't want to be too specific.

CHAIR:  I'm just asking whether your answer implies that.

MS ROBERTSON:  I think that's correct.

CHAIR:  Thank you.  And the process that you have just described, does the Australian Government regard as consistent with the standing of general comments under international law?

MS ROBERTSON:  Yes, we would take that approach with other general comments of treaties to which we are a party     treaty bodies to which we are a party.

CHAIR:  Thank you.  Now I will ask if any of the parties represented have any questions to put to any members of the panel.

If not, I think we can take it that that concludes your evidence.  Thank you very much for coming to the Royal Commission and giving evidence.  We are grateful for the preparation that you have obviously undertaken and for the material that has been provided to the Royal Commission.  I think there are a few matters that have been taken on notice one way or another, so we will build that into a timetable that we will talk about in just a moment.  Thank you very much for your contribution to the work of the Royal Commission.

MS ROBERTSON:  Thank you.

MR WALTER:  Thank you.

MR MANSFIELD:  Thank you, Chair.

THE WITNESSES WITHDREW

MS EASTMAN:  Commissioners, can I tender into evidence the two papers referred in the course of the panel discussion?  The first is the Australian Government Background Paper on the United Nations Convention on the Rights of Persons with Disabilities part 1, Australia's position and interpretive approach, dated 16 June 2020, if that could be marked Exhibit 18.20.

CHAIR:  That can be done.  Thank you, that document will be admitted into evidence with that marking.
 

EXHIBIT #18.20   AUSTRALIAN GOVERNMENT BACKGROUND PAPER ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES PART 1 DATED 16 JUNE 2020

MS EASTMAN:  The second is the Australian Government's response to questions in a letter from the Office of the Solicitor Assisting the Royal Commission, dated 6 October 2021, which is dated 1 November 2021, if that could be marked 18.21.

CHAIR:  That also will be admitted into evidence with that marking.

EXHIBIT #18.21   AUSTRALIAN GOVERNMENT'S ANSWERS TO QUESTIONS DATED 1 NOVEMBER 2021

MS EASTMAN:  I am not tendering the 6 October letter because the response set out the relevant questions clearly.  I want to conclude the two day hearing by coming back to the relevance of rights to people with disability.  You may recall Colin Hiscoe's evidence at Public Hearing 3 and I want to remind you of what he told us then.

[VIDEORECORDING PLAYED]

MR HISCOE:  Why is it so hard and why is it so damned difficult to be able to get in those CRUs or the group homes?  Why is it so difficult for people with disability to have the same basic human rights as anybody else in this room or in the community?  Why is it that we can't have the same basic things?

You're allowed to get married; I might not be because I've got a disability.  You're allowed to go to the pub; I'm not, I've got a disability.  I'm in a group home, the doors get locked at 6 o'clock.  You're allowed to have children; I'm not.  Why?  Because I've got a disability.  When is it going to end that people with disability have the same basic human rights as anybody else in this community?

I apologise for yelling and screaming.  I just get so passionate.

[VIDEORECORDING ENDED]

MS EASTMAN:  Thank you to Mr Hiscoe for helping us.

 
CHAIR:  I think it's fair to say that we remember Mr Hiscoe's evidence very well.

MS EASTMAN:  Commissioners, all that remains is some directions and we have circulated a set of directions.  There is one matter on which there may be some difference.  Chair, you have a copy of those directions.

CHAIR:  I do.  Can I deal with direction 1 because there were a few matters that were effectively taken on notice by the representatives from the Australian Government.  I think the approach to that would be if you and Mr Kennett, or at least those on your team to whom you delegate the task, can identify the questions that have been taken on notice, based on the transcript and with such modifications as may be appropriate.  Then the answers can be provided in accordance with proposed direction 1.

Proposed direction 1 would be: by Friday, 19 November 2021, any witness who took questions on notice during the hearing should provide their answers in writing to the Office of Solicitor Assisting the Royal Commission.  These answers should be targeted and concise.

I take it there is no difficulty about making that direction on the assumption that I have just put forward?

MS EASTMAN:  Thank you.

CHAIR:  I understand that parties with leave to appear wish to have a provision to provide additional documents.  I will ask if there is any issue about it but first you might indicate your response to that.

MS EASTMAN:  Commissioner, I am concerned that the parties with leave include three of the state governments which we have not focused on today, and there may be an occasion that the Royal Commission wants to address specifically with the state and territory governments their obligations under the CRPD.  So I would oppose the Royal Commission receiving any documents from the parties who have not had an active involvement in this hearing.

Then with respect to the Australian Government, I am concerned that we have sought for this hearing to keep the level of documentation quite concise and confined.  There is a vast array of documents that could be provided and my concern is receiving a large number of documents to be tendered into evidence, where we have not had an opportunity to test or explore the content of those documents in the course of the Public Hearing.

CHAIR:  The actual proposed direction says "provide any additional documents the parties wish to suggest for tendering by Counsel Assisting", not that they are to be tendered.  You are concerned about the volume of material that may come in and require a judgment to be made?

 
MS EASTMAN:  I am.  I understand this is a proposal from Public Hearing 16, which I was not involved in, so I may have a different approach to the reception of a large number of documents following the hearing.  My concern is that if there are any relevant documents, that we have an opportunity to test them.

You will see, Commissioners, we have included in our tender bundle some background material.  So the parties were aware of background material that was available to the Commissioners, but I wasn't proposing to tender all of that material.

CHAIR:  Let me ask Mr Kennett first.  Mr Kennett, is there anything that the Commonwealth needs to submit for tendering that can't be addressed through responses to the written submissions prepared by Counsel Assisting?

MR KENNETT:  Your Honour, that suggested order comes from us.  We have in mind one and possibly two fairly specific and, I suspect, tangential things that arise from comments made by witnesses yesterday and this morning.  One of them may have already been sent to our colleagues Solicitors Assisting.

So there were two factual propositions which, as we understand it, are at best tangential to this hearing's concerns but which the Commonwealth would not wish to go unanswered.  We intended to meet those, if we could, by encouraging our learned friends to tender, as I say, one and possibly two documents.

CHAIR:  You are telling us that there will be only a couple of documents that you would seek to have Senior Counsel Assisting tender?

MR KENNETT:  Yes, your Honour, and certainly not an expansion of new areas of discourse on international law or anything of that kind.

CHAIR:  All right.  Thank you very much.

Ms McMillan, I can see you on the screen.  Is there anything you want to say about what Queensland would want to do?

MS McMILLAN:  Yes, first, thank you, Chair.

Firstly, this is the first we have heard about this from Ms Eastman.  That material she says was provided to the parties was provided Friday, so I need to take instructions from my clients.

CHAIR:  What is it that this is the first you have heard about?  I'm not sure.

MS McMILLAN:  About the background material that she says was provided to the parties.  I'm pointing out it was only provided on Friday, so we have not had a lot of time to absorb it.  There's been oral evidence --- (overspeaking) ---

MS EASTMAN:  Can I clarify, and I'm sorry if I have not done so.
 

The background material will not be tendered in this hearing.  We provided it to the parties on the basis that the parties had an opportunity to see some background material that the Commissioners had read, but there is no intention to tender that material.

CHAIR:  I'm not sure what we are talking about, actually, what sort of background material?

MS EASTMAN:  That would be the material, I think, you will find in volume 3 of what we have described as the hearing bundle.  So those are articles.  Some academic articles.

CHAIR:  Yes, I see.

MS EASTMAN:  But they are not being tendered.  They never in fact    

CHAIR:  Ms McMillan, it doesn't sound as though you would need to be tendering any other documents.  Anything that you want to say that arises out of the Counsel Assisting's submissions presumably could be addressed in your responses if you need to.

MS McMILLAN:  Well, yes, we would be content with that, as in the usual way.

CHAIR:  Thank you.  That is the approach that in principle I would take to the other parties given leave to appear.  Is there anybody who wishes to contend     or any other party wishes to contend that they should in fact have leave to provide additional documents that they wish to have tendered, apart from Mr Kennett's client?

If not, then paragraph 1(a) can read:

The Australian Government will provide any additional documents they wish to suggest for tendering by Counsel Assisting by 19 November 2021.

Mr Kennett, as you have heard, I have noted that you have indicated that there will only be a couple of documents that come into that category.  Thank you.

Proposed Direction 2 follows, I think:

Counsel Assisting the Royal Commission will consider any additional material produced by the Australian Government and determine if any additional steps need to be taken.  By Wednesday, 8 December 2021, Counsel Assisting will tender into evidence whatever additional material she considers appropriate.

Direction 3:

 
Counsel Assisting will prepare written submissions by Tuesday, 14 December 2021.  Counsel Assisting's submissions will be made available to a confidential basis to those parties with leave to appear at this Public Hearing.

Direction 4:

Those parties who wish to make submissions in response to Counsel Assisting's submissions should do so in writing by Tuesday, 1 February 2022.  The submissions in response should be concise and should not include any additional proposed evidence.

MS EASTMAN:  Thank you, Chair.

CHAIR:  Is there anybody who wishes to say anything about those directions?  If not, I shall regard them as having been made.  I shall regard them as having been made.  Thank you very much.

Ms Eastman, is there anything else you want to say?

MS EASTMAN:  No, other than thank the Commissioners and those following the proceeding, that we have gone a little over time, so thank you for your indulgence.

CHAIR:  I would like to conclude the hearing by thanking everybody who has appeared to give evidence.  It has been, I can say, I think, a very interesting and stimulating couple of days, and we are very grateful do all of the witnesses who have given evidence, both for their appearance, their oral evidence and the care that has gone into the preparation of their evidence and also, of course, to add the thanks on behalf of the Commissioners to Counsel Assisting, the Office of Solicitor Assisting and all those who have contributed to the orderly conduct of this hearing, as always, we are extremely grateful to the expert work that has been done by the staff of the Royal Commission and through the assistance provided by Law In Order, and of course the Auslan translators who have done their usual excellent job.

Thank you, everybody.

The next hearing of the Royal Commission will be on 22 November, which will be Public Hearing 19, which will deal with the second aspect of the employment hearing.  We will now adjourn.

HEARING ADJOURNED AT 4.38 PM UNTIL MONDAY, 22 NOVEMBER 2021