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
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.
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.
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.
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.
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.
- 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.
- 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.
- The fact that the hearing was de novo was clarified in the High
Court case of Aldridge
- Booth (1988) 80 ALR 1.
- 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.
- Op. cit.: p 9.
- Op. cit.: pp 35 38.
- Second Reading Speech, Sex Discrimination and Other Legislation
Amendment Bill, Hous
- of Representatives, 3 November 1992.
- (1995) EOC 2 662.
- Human Rights Legislation Amendment Act 1995 (Cwlth).
- See Ruth Treyde, 'Enforcing Human Rights: The Response to
Brandy', (1996) 7 Public La
- Review: p15.
- 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.
- Attorney-General Michael Lavarch MP, 'Human Rights and Equal
Opportunity Commissio
- Overhaul', Press Release, 28 January 1995.
- Tropical Shine Holdings Pty Ltd trading as KC Country v Lake
Gesture Pty Ltd (1993) 118 AL
- 510.
- 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".
- Explanatory Memorandum, Human Rights and Legislation Amendment
Bill 1996: p 17.
- 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.
- 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.
- Ibid.
- Gibson v Bosmac Pty Ltd (1995) 60 Industrial Reports 1.
- See Federal Court Rules, O. 9 and O. 45.
- In the 1995 96 financial year, 50% of applications to the
Attorney-General receive
- financial assistance.
- 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.
- Human Rights and Equal Opportunity Commission, Press Release, 7
August 1996.
- Margaret Thornton, The Liberal Promise: Anti-Discrimination
Legislation in Australia
- 1990: pp 143 170.
- 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.
- 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.
- Rosemary Hunter and Alice Leonard, unpublished research
paper.
Krysti Guest
28 January 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
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ISSN 1328-8091
© Commonwealth of Australia 1997
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