Bills Digest 75 1996-97 Human Rights Legislation Amendment Bill 1996


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Human Rights Legislation Amendment Bill 1996

Date Introduced: 4 December 1996
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1, 2 and 3 on Royal Assent. Remaining sections and items in Schedule 1 to be fixed by proclamation, and any remaining provisions six months after Royal Assent.

Purpose

This Bill proposes two significant structural changes to the operation of Federal anti-discrimination legislation.

  • In response to the High Court's 1995 decision in Brandy, the Bill repeals the Human Rights and Equal Opportunity Commission's inquiry/determination functions and implements a scheme by which complaints not resolved through conciliation may be continued by way of an application to the Federal Court in order to obtain an enforceable determination.
  • The Bill proposes to centralise all complaint investigations and conciliation procedures which arise under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 in the office of the President of the Human Rights and Equal Opportunity Commission.

Background

Since the inception of the Commonwealth anti-discrimination regime in 1975, procedures for dealing with discrimination complaints have been the subject of regular amendment. These amendments have generally been forged around attempts to reconcile the at times conflicting objectives faced by legislators in the context of anti-discrimination law the desire to afford equitable and accessible justice to people subject to discrimination through alternative dispute resolution whilst at the same time ensuring as far as possible the coercive power of the law for anti-discrimination matters.

The Human Rights Legislation Amendment Bill 1996 is the most recent attempt by a Federal Government to reconcile these objectives and has arisen in response to both constitutional and administrative concerns of anti-discrimination legislation. In order to place this Bill in its historical context, the following is a brief overview of the history of the enforcement provisions in anti-discrimination legislation.(1)

Overview of enforcement provisions in anti-discrimination legislation

The Racial Discrimination Act 1975 (RDA) was the first Commonwealth anti-discrimination law and provided for complaints of discrimination on the grounds of race, colour, descent or national or ethnic origin to be made to a Race Discrimination Commissioner, who would attempt to resolve the matter by conciliation. If conciliation failed, the aggrieved person could initiate proceedings in a court, which could grant such relief as the court considered just.

In 1981, the Human Rights Commission Act 1981 was enacted establishing the Human Rights and Equal Opportunity Commission (the Commission). The Commission's functions included inquiring into any act or practice or the Commonwealth, or acts done under Commonwealth legislation, that may be inconsistent with, or contrary to, the human rights and freedoms recognised in certain international instruments.(2) Where appropriate, the Commission was to endeavour to effect a settlement of such matters and was empowered to serve a notice on a person of its findings, including recommendations for the purpose of preventing a repetition or continuation of the discriminatory act or practice. The Commission was also required to report its findings to the relevant Commonwealth Minister.

The Sex Discrimination Act 1984 (SDA) expanded the Commission's role in making findings and recommendations. The SDA provided for complaints to be made on the basis of discrimination on the grounds of sex, marital status, pregnancy and sexual harassment in specified areas. A Sex Discrimination Commissioner was appointed to conciliate complaints. If conciliation failed, the Commission was empowered to conduct an inquiry into the complaint and where appropriate make declarations that the respondent had engaged in unlawful conduct and should perform certain acts to remedy the situation. The determinations of the Commission were not binding or conclusive and to obtain an enforceable determination, the Commission or complainant could initiate proceedings de novo in the Federal Court.(3)

The Human Rights and Equal Opportunity Commission Act 1986 (HRA) reflected the Commission's increasing role in the protection of human rights and empowered the Commission to make determinations and declarations in relation to race discrimination consistent with its powers concerning sex discrimination. These determinations remained unenforceable.

This tripartite structure for discrimination complaints of conciliation, an inquiry by the Commission and a possible de novo hearing in the Federal Court met with significant criticism on the grounds that the system was inefficient and prone to exacerbate, rather than ameliorate, the distress of a complainant.(4) For example, in Aldridge v Booth, a woman complaining of sex discrimination was unable to have the matter resolved by conciliation, and after an inquiry by the Commission was awarded $7,000 damages. The respondent refused to pay. The complainant received legal aid and initiated proceedings in the Federal Court, and one year later, after a seven day trial, was awarded the identical sum of money by the Federal Court. However, the respondent still refused to pay on the grounds that he was impecunious and the woman could not afford to pursue the matter further. The former Member for Kennedy, Mr Rob Hulls MP, publicly noted that '[t]o my mind, the whole process is an abuse of human rights'.(5)

In light of these concerns, the question of the status of Commission determinations was referred to the Senate Standing Committee on Legal and Constitutional Affairs in 1990. The Committee considered the complex constitutional issues raised by the separation of powers doctrine (which prohibits administrative bodies like the Commission exercising judicial powers, such as enforcement of a decision) in light of the need to facilitate the most equitable structure for people alleging discrimination. A range of proposals were placed before the Commission but the majority considered the most viable to be the Commission's proposal for the registration of Commission determinations by the Federal Court and giving them the effect of orders of the Federal Court unless the respondent makes an application to the Court for review. The then Chief General Counsel advised the Committee that as the proposal incorporated a full judicial review of a registered determination, the enforceablity of registered determinations would not amount to judicial power being granted to the Commission and was thereby constitutional. Accordingly, the majority of the Committee (Senators Cooney, Giles, Schacht and Spindler) recommended that the legislation be amended to incorporate the Commission's proposal. However, the minority report (Senators Vanstone, Kemp, O'Chee and Walsh), disagreed with the constitutional validity of the scheme and proposed that the Commission should have the powers to attempt conciliation of a complaint, but where conciliation was unsuccessful the matter should be directly referred to the Federal Court. This solution was seen as both 'constitutionally certain, and is as informal as is consistent with the demands of justice'.(6)

In accordance with the majority report, the Government introduced the Sex Discrimination and Other Legislation Amendment Bill 1992(7) which, among other things, amended the newly enacted Disability Discrimination Act 1992 (DDA), the HRA, the RDA and the SDA to allow registration of the Commission's determinations in the Federal Court, which would have effect as if it were an order of the Court unless the respondent applied to the Court with 28 days for a review of the determination. The Bill became operative on 13 January 1993.

The Brandy Decision

The enforcement procedures of the 1992 Act were the subject of a constitutional challenge in the case of Brandy v Human Rights and Equal Opportunity Commission.(8) Following a complaint lodged with the Commission pursuant to the RDA, the Commission had found that Brandy had breached the RDA and had made a determination including payment of damages. The determination was duly registered in the Federal Court. Brandy challenged the constitutional validity of the determination on the basis that it was an exercise of judicial power, which may only be conferred on a Court and not an administrative body such as the Commission. The High Court unanimously decided that provisions within the RDA which allowed determinations of the Commission to be enforced through registration in the Federal Court offended the separation of powers and was thereby unconstitutional. Although the High Court acknowledged that what constituted 'judicial power' was slippery, it was at least clear that the ability to enforce decisions is an unequivocal exercise of judicial power. Accordingly, as upon registration a determination of the Commission would have 'effect as if it were an order made by the Federal Court', then this function was an exercise of judicial power, regardless of the fact that a respondent could initiate a Federal Court review of the determination.

As the SDA and the DDA had identical enforcement mechanisms, those provisions were also invalidated by the decision.

Response to the Brandy Decision

A two stage response was announced to the Brandy decision on 27 February 1995. Firstly, the pre-1992 enforcement process was temporarily restored, therefore implementing a schema of de novo hearings in the Federal Court following a Commission inquiry into an unconciliated matter.(9) Secondly, consideration of a permanent solution was referred to the tripartite review committee (Attorney-General's Department, Department of Finance, the Commission) which was already considering the structure and internal operation of the Commission. After wide consultations, the Committee recommended the following.(10)

  • Creation of a new Human Rights Division of the Federal Court.(11)
  • Division of complaint handling into two stages. Firstly, conciliation would be attempted by the Commission in the first instance, and if a matter was unable to be conciliated, proceedings de novo could be commenced in the Federal Court.
  • Establishment of Judicial Commissioners, appointed as officers of the Federal Court, who would have their functions delegated by Federal Court judges.
  • Empower the relevant Commissioner to apply to appear in any Federal Court hearing as amicus curiae ('friend of the Court') if the order sought may have a significant affect on human rights of specific groups generally, if the case had significant implications for the administration of the Act or if it were in the public interest.
  • An emphasis on procedures which promote access and equity, in terms of costs, evidence and procedures, access to childcare, interpreters and appropriate facilities for peoples with a disability.

The previous Attorney-General, Mr Michael Lavarch MP, announced reforms in accordance with these changes on 28 January 1996,(12) but no action was taken prior to the Federal election. The Coalition's Law and Justice policy also reflected the Committee's recommendations and on 8 August, the Attorney-General, Mr Daryl Williams MP, announced Cabinet agreement to reforms to simplify dispute resolution of human rights matters generally in accordance with the Committee's recommendations.

Main Provisions

Schedule 1

The main provisions of the Bill can be categorised under four headings: repeal of complaint and conciliation mechanisms from the DDA, RDA and SDA; restructuring of the role of the President of the Commission; the new structure for complaint handling; and the role of Federal Court in terminated complaints. Differences between provisions currently operating in the DDA, the RDA, the SDA and the HRA and proposed provisions are indicated where significant.

A. Repeal of complaint and conciliation mechanisms from the DDA, RDA and SDA

Items 3-8 (DDA), 58-61(RDA), 80-83(SDA) repeal the definitions in the DDA, the RDA and the SDA which relate to complaints, inquiries and conciliation (for example, class member; complainant; compulsory conference; interim determination; representative complaint). Items 34-46 relocate the relevant definitions in the HRA.

Items 18-23 (DDA), 65-70 (RDA) and 88-93 (SDA) repeal almost entirely each Part of the DDA, RDA and SDA entitled 'Enquiries and Civil Proceedings'. Currently, these Parts cover inquiries by the Commissioners, inquiries by the Commission, and enforcement of determinations in the Federal Court. In relation to the DDA and the SDA, these Parts will be renamed 'Functions of Human Rights and Equal Opportunity Commission' and in relation to the RDA 'The Race Discrimination Commissioner and Functions of the Commission'. For all three Acts, the substance of these Parts will continue to confer the following powers on the Commission.

  • Promote understanding and acceptance of each Act.
  • Develop, conduct and foster research and educational programs in accordance with spirit of each Act.
  • Prepare and publish appropriate guidelines for the avoidance of unlawful discrimination.
  • Intervene where appropriate with the leave of the Court.
  • Make inquiries and determinations on matters referred to by the Minister.
  • In relation to the DDA and the SDA, the power to grant temporary administrative exemptions.
  • In relation to the DDA, the continuation of current powers in relation to the development and monitoring of disability standards.

Item 92 repeals the powers in the SDA associated with the reference of discriminatory awards and agreements to the Australian Industrial Relations Commission and the reference of discriminatory determinations to the Remuneration Tribunal and the Defence Force Remuneration Tribunal. Item 56 inserts these powers as Part IIC of the HRA.

Items 25 (DDA), 74 (RDA) and 95 (SDA) repeal the offences in each Act which relate to complaint handling functions of the Commission, namely the offences relating to failure to attend a conference, failure to furnish information, offences in relation to the Commission and issues relating to self-incrimination. Offences related to these issues are transferred to the HRA (discussed below). A range of offences will still remain in each specific Act. In the DDA, the offences remaining will relate to the provisions of false and misleading information and the failure to provide actuarial or statistical data. In the RDA, the offences remaining are in relation to the administration of the Act, provision of false and misleading information and disclosure by a member of the Commission of private information. In relation to the SDA, remaining offences relate to advertisements, failure to provide actuarial or statistical data, disclosure of confidential information, provision of false or misleading information; victimisation and obstruction of administration of Act.

B. Restructuring of the Role of the President

Item 50 repeals the detailed table in section 8A of the HRA setting out the main functions and powers of the President conferred by the DDA, the HRA, the RDA and the SDA and replaces it with the plenary power that the President is responsible for managing the administrative affairs of the Commission. Item 55 also assigns the President responsibility for all staff.

Item 53 provides that the President cannot delegate to another member of the Commission any power or responsibility in relation to the handling of complaints or referral of discriminatory awards or determinations. This is fundamentally different to the current structure where the specific Acts grant the role of conciliation and other complaint handling functions to the Disability Discrimination Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner and is a key aspect of the centralising objective of the Bill. The proposed role of the Commissioners as amicus curiae in Federal Court proceedings (discussed below) is linked to this separation of Commissioners from complaint handling functions.

C. New Complaint Handling Framework

Items 56 sets out the new framework for complaint handling to be exercised by the President.As noted above, this framework consolidates the specific frameworks for complaint handling currently in the DDA, the HRA, the RDA and the SDA and is primarily modelled on the DDA.As this item runs for several pages, for ease of reading, the proposed sections will be included in the discussion below.

Proposed section 46P: Lodging a Complaint provides that complaints must be lodged with the Commission in writing and must allege unlawful discrimination. There are three categories of persons by whom a complaint can be lodged.

  • A person aggrieved by the alleged unlawful discrimination, either on their own behalf or on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination.
  • 2 or more persons aggrieved by the alleged unlawful discrimination either on their own behalf or on behalf of themselves and one or more other persons aggrieved by the alleged unlawful discrimination.
  • A person (who may or may not be aggrieved by the unlawful discrimination) or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.

This schema extends the current law in two instances. Firstly, in relation to the RDA and the SDA, it allows a person who is not aggrieved by the alleged unlawful discrimination to initiate a complaint, whereas currently only a trade union may lodge a complaint without being an aggrieved person. Secondly, in relation to the DDA it is clarified that a trade union is entitled to initiate a complaint on behalf of a person or persons aggrieved. This is not necessarily the case under current law.

Proposed provision 46PA: Representative Complaints provides complaints must be against the same person and arise out of the same, similar or related circumstances. A written complaint must describe or otherwise identify the class members, however it is not necessary to name them individually or specify a number and it is not necessary to have the consent of the class members to lodge a complaint. The schema for representative complaints is based on that in the Federal Court of Australia Act 1976 (Federal Court Act), however it differs in several respects. These differences are important given that such complaints may potentially cross from the Commission to the Federal Court.

(i) Section 33C of the Federal Court Act requires that for a representative action to be initiated there must be a minimum of seven persons claiming against the same person. This requirement is somewhat malleable. Case law suggests that it is not necessary that the application demonstrate that at least seven persons have associated claims, but that it is sufficient if the evidence before the Court justifies the assumption that at least seven persons have such a potential claim.(13) Section 33L of the Federal Court Act also provides that if at any stage in the proceeding it appears likely to the Court that there are fewer than seven group members, the Court may order the proceedings continue or discontinue.

The minimum number required in the Bill for the initiation of a representative action in the Commission is two. If a representative complaint of five people cannot be conciliated by the Commission and the complainants wish to pursue the matter in the Federal Court as a representative complaint, it is unclear how this will occur. In order to trigger the right of a Federal Court application, a complainant must have received a termination notice from the President. Termination notices are given to all 'affected persons' involved in the complaint. Therefore it would appear impossible for a representative action involving only five people in the Commission to be initiated as a representative action in the Federal Court. It is possible that this difficulty could be ameliorated under the above mentioned section 33L of the Federal Court Act but this is unclear. It is still open to each individual complainant to lodge a Federal Court application separately.

(ii) The standing requirements as between the Bill and the Federal Court Act also differ. As noted above, the Bill proposes that a complaint can be initiated by a person (who is not necessarily a person aggrieved) or a trade union on behalf of more than one other person. Section 33D of the Federal Court Act, however, requires that a person who is able to initiate a representative action must have a 'sufficient interest to commence a proceeding on his or her own behalf against another person'.(14) This would exclude a person who is not aggrieved or a trade union from initiating an action in the Federal Court.

(iii) The third main difference between the Bill and the Federal Court Act is that the originating process under the Bill does not require specification of the common issues of law or fact on which the representative claim is grounded, a requirement currently in the DDA, the RDA and the SDA. The Explanatory Memorandum states that this 'requirement will be removed because it imposes on complainants at an early stage of complaint handling a burden which is not justified by the nature of the inquiry and conciliation process'.(15) After conciliation is terminated it is envisaged that those matters could more fully be articulated in a complaint to the Federal Court.

Inquiries by the President

Proposed section 46PD: Inquiry by President mirrors current provisions in the RDA, SDA and DDA, requiring that if a complaint is lodged, the President must inquire into the complaint and attempt conciliation.

Proposed section 46PE: Termination of Complaint The President's powers to terminate a complaint are generally modelled on those in the DDA, and extend the current powers to decline a complaint under the RDA and the SDA. The President's power to terminate a complaint on the grounds that the complaint has been dealt with adequately elsewhere, that a more appropriate remedy in relation to the complaint is reasonably available or that the complaint would more effectively be dealt with by another statutory authority are new grounds for termination in relation to complaints under the RDA and SDA. The power to terminate on the ground that the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court is novel for each Act.

Proposed 46PF: President's Power to Obtain Information The President's power to obtain information reflects the current law in the DDA, the RDA and the SDA. The only new power of the President is 46PF(5) states that a document in possession of the President must be allowed to be inspected by any person entitled to inspect the document if it were not in the President's possession, a power which is currently only in the DDA.

Proposed sections 46PG and 46PH: Compulsory Conferences The President's proposed power to direct attendance at a compulsory conference and the proposed proceedings at a compulsory conference mirror current provisions in the DDA, the RDA and the SDA, with the exception of minor drafting clarifications.

Offences

Offences against the anti-discrimination regime will continue to be split between the HRA and specific anti-discrimination legislation in accordance with whether or not they are offences directly related to the complaint process.

Proposed sections 46PI-46PJ relate to offences in relation to a person failing to attend a compulsory conference, failing to give information or produce documents or providing false or misleading information, subject to the person having a 'reasonable excuse'. These all reflect the current law, except in one important respect. Currently, the DDA, the RDA, the SDA and the HRA provide that it is not a reasonable excuse in relation to the failure to furnish information or produce documents to claim self-incrimination. The Bill expands the defence of self-incrimination for a respondent or other person to the President's range of powers to obtain information and documents.

D. Proceedings in the Federal Court

The second key structural change to the anti-discrimination complaint handling machinery is the shift to the Federal Court of an inquiry into a matter once conciliation has been terminated. This shift responds to the High Court's decision in Brandy.

Proposed section 46PL: Application to Court if Complaint is Terminated The pre-conditions to making an application to the Federal Court in relation to an anti-discrimination matter are that:

  • a complaint made to the Commission has been terminated by the President; and
  • the giving of a notice by the President to all relevant complainants to the matter.

Once both of these pre-conditions have been met, any person who was an affected person (a person on whose behalf a complaint was lodged) in relation to the complaint may make an application to the Federal Court alleging unlawful discrimination. As noted above in relation to representative actions, this formulation of standing narrows the formula provided in the Bill for who can lodge a complaint to HREOC. There is also no provision made for the respondent to make an application to the Federal Court following the termination of a complaint by the President. This follows logically from the conceptual framework that a complaint to the Commission is legally separate from an application to the Federal Court, which must be initiated de novo. As it is the complainant's matter, it is a matter for them to initiate such de novo proceedings.

Applications must be made within 28 days of the issue of the termination notice and the unlawful discrimination alleged must be the same or the same in substance or must arise from the same or substantially the same acts omissions or practices, which were the subject of the terminated complaint. Significantly, this formulation provides sufficient flexibility to enable a complainant to redefine the grounds on which unlawful discrimination is claimed. Not being locked into legal descriptions formulated at the outset of a complaint is important given the common absence of legal advice complainants will have access to prior to lodging a complaint.

Proposed section 46PM: Interim Injunctions Provides the Federal Court the power to grant interim injunctions up until termination of the complaint by the President. Application for an interim injunction can be made by the Commission, a complainant, a respondent or any other affected person (therefore anyone on whose behalf a complaint is lodged). Proposed subsection 46PL(5) grants the Federal Court the power to grant interim injunctions pending determination of Federal Court proceedings.

Federal Court Judicial Registrars

Item 31 provides that the Rules of the Federal Court may delegate to Judicial Registrars any of the Court's human rights legislation powers, except for the power to grant an interim injunction. The proposed amendments lock into other legislation related to Federal Court judicial registrars, for example the amendments contained in the Workplace Relations and Other Legislation Amendment Act 1996 which, among other things, provides any party to a proceeding the right to apply for a review by the Federal Court of the findings of a judicial registrar.(16) The right to apply for a Court review ensures the delegation of judicial powers to a registrar is constitutional vis-a-vis the doctrine of separation of powers.(17)

The form of the review to be taken by the Court has been discussed both by the High Court(18) and a recent decision of Wilcox CJ in relation to judicial registrars in the Industrial Relations Court.(19) The majority of the High Court considered that a review of the facts and law would be constitutional. Wilcox CJ interpreted this to mean that the review required was not a hearing de novo in the sense that it was conducted as if there had never been a prior hearing, but rather the judge must conduct a review in which the parties are not bound by the course they took before a judicial registrar and that the judge is in no way bound by the findings of fact. Such a framework allows the judge to either conduct a complete rehearing (i.e. de novo), or to conduct a rehearing on one point only.

Equity Provisions

The Bill sets out a range of provisions which are aimed at ensuring the most equitable process possible for anti-discrimination matters in the Federal Court system. These provisions are linked to the attempt to balance the spirit of anti-discrimination with the effects of the Brandy decision.

Proposed section 46P(4) requires the Commission to assist a complainant in formulating or writing an initial complaint to the Commission and proposed section 46PQ states that the Commission may assist a person in preparing the forms required for an application to the Federal Court.

Proposed section 46PN states that as well as the right to appear in person or with a barrister and solicitor, a party to anti-discrimination proceedings in the Federal Court may be represented by another person who is not a barrister or solicitor unless the Court considers it inappropriate. This is contrary to the general Federal Court Rules on appearances, which provide that an applicant or a respondent can only be represented by themselves or by a solicitor,(20) and is an attempt to ameliorate the costs of legal advice. However, given the typical imbalance of power vis-a-vis complainants and respondents and their different access to financial and legal resources (for example many large corporations have in-house counsel) the equitable potential of this provision may prove to be very limited.

Similarly, proposed section 46PO provides that the Federal Court is not bound by technicalities (for example rules of evidence and procedure), subject to the effect of the Constitution.

Proposed section 46PR provides that a person who has commenced proceedings in the Federal Court or is a respondent may apply to the Attorney-General for the provision of assistance. In order to grant assistance, the Attorney-General must be satisfied that it is reasonable and would involve hardship if the grant was not made. This reflects current provisions for assistance in the DDA, the RDA and the SDA with respect to proceedings before the Commission and the Federal Court.(21) The Federal Court Rules also contain other equity measures in relation to costs.(22)

Two further provisions provide a link between the operation of the Commission and Federal Court proceedings. Proposed section 46PP allows for the President to provide the Federal Court with a written report on a terminated complaint, as long as the report does not set out anything done or said during conciliation proceedings. Although this provision smudges the conceptual division between a complaint to the Commission and an application to the Federal Court, it allows for an expeditious and efficient Court hearing.

Proposed section 46PS provides a role of amicus curiae ('friend of the Court') for the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Human Rights Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner. These Commissioners can apply to the Court to act as amicus curiae if they believe:

  • the orders sought, or likely to be sought, will have a significant affect on the human rights of non parties;
  • proceedings have significant implications for the operation of the relevant Act; or
  • it is in the public interest.

The role of Commissioners as amicus curiae reflects the newly defined role of Commissioners as human rights advocates and educators rather than as officers integrally involved in the conciliation and inquiry process.

Concluding Comments

The Bill's response to the Brandy decision reflects the proposals of the previous Government. The Commission has stated that granting the Federal Court the power to handle unconciliated complaints is the best outcome in the circumstances.(23) The Commission has yet to make a public comment on the proposed rationalisation of complaint handling functions and the changed role of Commissioners.

Given that the Bill is part of a process of reforming the Commonwealth anti-discrimination regime, it is useful to consider several structural problems which inhere in the system, particularly in regard to conciliation, which are not addressed by the current Bill.

Limitations of Conciliation

A governing assumption underpinning the anti-discrimination regime is that methods of alternative dispute resolution (such as conciliation) provide a more equitable forum for discrimination complaints. This assumption flows from a range of factors, including the sustained criticism that current modes of formal justice are ill equipped to come to terms with the experiences of socially marginalised groups and that the cost of formal litigation is prohibitive for most individuals and small businesses. Less formal modes of justice encourage victims of discrimination to file complaints due to their relative administrative simplicity and cheapness, on the grounds that the process guarantees privacy and confidentiality, and because the legal immunisation of the conciliation process allows a flexibility and creativity in approach which is usually impossible in a rules-oriented system.

However, in her study of Australian anti-discrimination legislation, Professor Margaret Thornton notes that, as a strategy, alternative dispute resolution is a double edged sword.(24) The neutrality and non-advocacy ideal for conciliation often fails to equalise power imbalances between complainants and respondents, resulting in conciliated outcomes disproportionately favouring respondents and which are relatively minimal when compared to Court orders.(25) In a study of the outcomes of conciliation in sex discrimination matters, (26)Rosemary Hunter and Alice Leonard suggest that part of the problem is the commonly held view of conciliation officers that the object of conciliation is to come to an agreement at all costs, regardless of the facts of the case and the equity of the agreement. They suggest elsewhere that in order to stop this trend, general guidelines as to the meaning of conciliation be established, in legislation or otherwise, ensuring that the object of anti-discrimination legislation is central to conciliated agreements through what they term a 'rights based model of conciliation'.(27)

Another significant problem with the current model of conciliation is that as it is more geared towards individualised, personalised successes, it appears limited in its ability to cope with systemic forms of discrimination. This is partly borne out by the fact that at a Commonwealth level, there has been relatively few instances of representative complaints or complaints of indirect discrimination as compared with individual complaints or complaints of direct discrimination. As systemic discrimination is the root of more obvious forms of individual discrimination, mechanisms to address systemic discrimination would be useful to consider. The Bill's changes to the structure of representative complaints may assist, however its reliance on a complaint based system may prove inadequate. Two other possibilities to consider are:

  • a non-complaints based procedure. The British Sex Discrimination Act gives the Equal Opportunities Commission the power to conduct non-complaint based investigations into possible systemic forms of discrimination. Recommendations are then presented in a report. This scheme has the benefit of potentially redressing discriminatory actions affecting a range of people. Legislating for specific Commissioners to have a similar role would sit well with the tenor of the Bill, which emphasises the new role of specific Commissioners as advocates and educators;
  • in light of the Bill's emphasis on the Federal Court, it would be appropriate if Federal Court orders were encouraged to respond to systemic matters which arose in the context of individual complaints.

Judicial Registrars

The use of judicial registrars appears to be aimed at promoting as informal and accessible a Federal Court as is constitutionally possible and it is likely that most matters in the Federal Court will initially be dealt with by a judicial registrar. Given this, then, the Bill does not necessarily move very far from the tripartite structure for anti-discrimination matters so criticised prior to enactment of the 1992 enforcement provisions. Instead of having conciliation, an inquiry by the Commission whose determination is unenforceable and then a de novo hearing in the Federal Court, the Bill proposes a tripartite model of conciliation, an inquiry (generally by a judicial registrar, which although enforceable is subject to an automatic right of appeal), and the possibility of another hearing by a Federal Court judge (the form of the review is discussed above).

If there are to be judicial registrars and rights of review before a Court then it would appear sensible that the registrars are organised in such a way that are able to develop a human rights expertise, a mechanism which may serve to contain the scope of a review process. This could be achieved by having specific human rights judicial registrars and ensuring ongoing training in human rights and anti-discrimination jurisprudence.

Self Incrimination

The Bill expands the current defence of self-incrimination in the DDA, the RDA and the SDA for a respondent or other person with regard to the President's range of powers to obtain information and documents. The reform may cause significant detriment to a complainant who requires access to documents held by the respondent and is at odds with the non-judicial and confidential nature of a conciliation hearing.

Endnotes

  1. For a more detailed discussion of these issues see Anne Twomey, 'Trimming the Tribunals: Brandy v Human Rights and Equal Opportunity Commission', Current Issues Brief No. 40 1994/5, 30 March 1995, Parliamentary Research Service.
  2. In particular the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons.
  3. The fact that the hearing was de novo was clarified in the High Court case of Aldridge
  4. Booth (1988) 80 ALR 1.
  5. See academic and judicial comments noted in the Report of the Senate Standing Committee on Legal and Constitutional Affairs, Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner, November 1992: pp 8 12.
  6. Op. cit.: p 9.
  7. Op. cit.: pp 35 38.
  8. Second Reading Speech, Sex Discrimination and Other Legislation Amendment Bill, Hous
  9. of Representatives, 3 November 1992.
  10. (1995) EOC 2 662.
  11. Human Rights Legislation Amendment Act 1995 (Cwlth).
  12. See Ruth Treyde, 'Enforcing Human Rights: The Response to Brandy', (1996) 7 Public La
  13. Review: p15.
  14. The Federal Court was considered a suitable location for the judicial consideration of anti-discrimination matters due to the breadth of its jurisdiction. The creation of a new Federal Human Rights Court was considered, however the Committee believed that this would be an inefficient exercise given the relatively small amount of human rights cases litigated. The Family Court and the Industrial Relations Court were also considered as options, however, as they both have a more specialist jurisdiction then the Federal Court, they were considered inappropriate.
  15. Attorney-General Michael Lavarch MP, 'Human Rights and Equal Opportunity Commissio
  16. Overhaul', Press Release, 28 January 1995.
  17. Tropical Shine Holdings Pty Ltd trading as KC Country v Lake Gesture Pty Ltd (1993) 118 AL
  18. 510.
  19. It should be noted that Order 43 of the Federal Court Rules enables a person with a mental disability to be represented by a committee or by a next friend, who would therefore be deemed to have a "sufficient interest".
  20. Explanatory Memorandum, Human Rights and Legislation Amendment Bill 1996: p 17.
  21. The amendments in the Workplace Relations Act 1996 provides, among other things, that judicial registrars must have at least 5 years experience as a legal practitioner; are eligible for reappointment; and are not subject to direction or control when exercising powers delegated to them.
  22. The use of judicial registrars in a manner which does not offend the doctrine of the separation of powers is generally spelt out in the High Court case of Harris v Calladine (1991) 172 CLR, 84-166. The case states that the Parliament can authorise the delegation of power to judicial registrars so long as the judges remain in control over what can be delegated, fulfil the primary function of acting judicially and therefore have effective control over the Court. If the exercise of delegated powers is subject to review on the law and facts, or de novo, it would not contravene the separation of powers.
  23. Ibid.
  24. Gibson v Bosmac Pty Ltd (1995) 60 Industrial Reports 1.
  25. See Federal Court Rules, O. 9 and O. 45.
  26. In the 1995 96 financial year, 50% of applications to the Attorney-General receive
  27. financial assistance.
  28. For example, see Federal Court of Australia Regulations, Regulation 2AA (2)(g) provides, inter alia, for waiver of setting down fees if a person is on social security benefits, is an AUSTUDY or ABSTUDY recipient, or is under 18 years old.
  29. Human Rights and Equal Opportunity Commission, Press Release, 7 August 1996.
  30. Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia
  31. 1990: pp 143 170.
  32. For example, as conciliation is deemed neutral, it is the complainant rather than the conciliation officer who is required to identify an appropriate remedy in relation to discrimination. Professor Thornton suggests that a combination of the power imbalances between complainants and respondents in general and the modesty, embarrassment and/or lack of knowledge of complainants appear to preclude them from identifying what, in more formal legal terms, would be a 'just' outcome. Op. cit.: p 152.
  33. Rosemary Hunter and Alice Leonard, The Outcomes of Conciliation in Sex Discrimination Cases, University of Melbourne Centre for Employment and Labour Relations Law, Working paper No. 8, 1995: pp 16 27.
  34. Rosemary Hunter and Alice Leonard, unpublished research paper.

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Krysti Guest
28 January 1997
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ISSN 1328-8091
© Commonwealth of Australia 1997

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Published by the Department of the Parliamentary Library, 1997.

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Last updated: 14 July 1997


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