Bills Digest No. 227  1997-98 Human Rights Legislation Amendment Bill (No. 2) 1998

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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Human Rights Legislation Amendment Bill (No. 2) 1998

Date Introduced: 8 April 1998

House: House of Representatives

Portfolio: Attorney-General

Commencement: On a date to be fixed by Proclamation, which must be after the first day on which Schedule 1 to the Human Rights Legislation Amendment Act (No. 1) 1998 has commenced. However, if this commencement is not within six months: after the Act receives Royal Assent or the day on which the Human Rights Legislation Amendment Bill (No. 1) 1988 receives Royal Assent (whichever is the latest) the Act commences on the second day after the end of that six months.

Purpose

The purpose of the Bill is to:

• rename the Human Rights and Equal Opportunities Commission the Human Rights and Responsibilities Commission
• restructure the new Commission by abolishing the five specific commissioners responsible for Aboriginal and Torres Strait Islander social justice, human rights and disability, racial and sex discrimination and replacing these commissioners with three Deputy Presidents with responsibility for:
• • human rights and disability discrimination
  • racial discrimination and social justice and
  • sex discrimination and equal opportunity
• remove the Privacy Commissioner from the old Commission structure and create an Office of the Privacy Commissioner
• create a requirement that the Attorney-General must grant approval before the Commission can seek leave of a court to intervene in a court proceeding related to human rights and discrimination.

Background

The Human Rights and Equal Opportunity Commission (HREOC) is a statutory authority comprised of a President and six specialist Commissioners. HREOC's broad objective is to promote respect for and observance of human rights and it is primarily responsible for administering the Commonwealth's anti-discrimination regime as enacted in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Human Rights and Equal Opportunity Act 1986, the Privacy Act 1988 and the Disability Discrimination Act 1992. The Native Title Act 1993 also confers additional functions on the Aboriginal and Torres Strait Islander Social Justice Commissioner. Central aspects of HREOC's current functions include the handling and conciliation of complaints made to HREOC, research into systemic forms of discrimination, educative and advocacy roles and advising government on legislation and policy affecting human rights and discrimination issues. In addition, HREOC is responsible for overseeing Australia's obligations under seven key human rights instruments.

This wide ranging human rights and anti-discrimination regime has been developing for over two decades and represents a legislative attempt to ensure that the democratic aspiration of equality for all is substantively realised. The reach of Australia's human rights laws have been significantly influenced by the United Nations' codification of human rights norms. The institutional mechanisms to handle human rights and discrimination complaints have incrementally broadened as a way of securing an effective legal framework to respond to this increasing range of actionable human rights issues. The past few years have seen Government proposals for a contraction and streamlining of the operation and structure of the HREOC and this Bill is an important part of this policy direction. In order to place the Bill in context, an historical overview of Commonwealth human rights legislation is provided below.

History of Commonwealth Human Rights Laws

Human Rights Bill 1973

In 1973, the first Human Rights Bill was introduced into the Commonwealth Parliament. The Bill was based on the International Covenant on Civil and Political Rights, and provided for a Human Rights Commissioner who would settle complaints under the Bill. This Bill was not passed prior to the 1974 double dissolution and was not reintroduced.

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 (RDA) was the first piece of Commonwealth human rights legislation and was implemented as a condition precedent for Australia's ratification of the United Nations Convention on the Elimination of All Forms of Racial Discrimination. The RDA established a Community Relations Commissioner, who was empowered to receive, and attempt conciliation of, complaints of racial discrimination in specified situations (for example, employment, education, provision of goods and services). If conciliation failed, the aggrieved person could initiate proceedings in a court. The RDA also provided that all persons had the right of equality before the law, thereby empowering a person aggrieved to make a complaint to a civil court directly.

Human Rights Commission Act 1981

After the constitutional crisis of 1975, the Liberal Government made two attempts in 1977 and 1979 to introduce and pass a Bill for a Human Rights Commission. These both failed due to the calling of a snap election and Senate opposition. Following an election commitment by the Liberal Government to continue with the 1979 Bill, the Parliament passed the Human Rights Commission Act 1981. During the Second Reading Speech, the then Attorney-General Senator Durack highlighted the dual aspects of the Commission's role in protecting human rights through complaint mechanisms and promoting human rights through research and educative programs, noting that:

This Act implemented the Human Rights Commission, comprised of seven part time Commissioners and one full-time Commissioner, which had inquiry and conciliation powers and research responsibilities in relation to the rights outlined in the international conventions scheduled to the Act (International Covenant on Civil and Political Rights, Declaration on the Rights of Mentally Retarded Persons, Declaration on the Rights of Disabled Persons, Declaration on the Rights of the Child). Where appropriate, the Commission was to endeavour to effect a settlement of a complaint and was empowered to serve a notice on a person of its findings. However, these findings had no binding status.

The RDA was also amended so that the Commissioner for Community Relations was transferred to the new Commission and was subject to the directions of the Commission.

Sex Discrimination Act 1984

In 1984, after prolonged and controversial debate, the Sex Discrimination Act 1984 (SDA) was enacted. The SDA sought to implement to some degree Australia's obligations under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. It prohibited discrimination on certain grounds (for example, sex, marital status, pregnancy, sexual harassment) in specified areas (for example employment, education, housing).

Reflecting the RDA, the SDA provided a right of complaint to the Human Rights Commission, and established a Sex Discrimination Commissioner, who was subject to the directions of the Commission. The Sex Discrimination Commissioner was empowered to attempt conciliation of complaints, and if conciliation failed, the Commission was empowered to conduct an inquiry into the complaint and make relevant declarations as to the status of the complaint. However, these declarations had no binding status and if an enforceable determination was required, the Commission or complainant could initiate proceedings de novo in the Federal Court.

Human Rights and Equal Opportunity Commission Act 1986

The Human Rights and Equal Opportunity Act 1986 (HREOCA) reflected the Commission's increasing role in the protection of human rights. HREOCA extended the name of the Human Rights Commission and restructured the operation of the Commission, establishing a Human Rights Commissioner responsible for, among other things, complaints in relation to the scheduled human rights instruments (see above).

The Community Relations Commissioner was re-named the Race Discrimination Commissioner, in order to align the title with the Sex Discrimination Commissioner and the HREOC was empowered to make determinations and declarations in relation to race discrimination consistent with its powers concerning sex discrimination. Finally, all three Commissioners were made members of the HREOC, rather than being subject to directions from the HREOC. This shift in status was implemented to strengthen the HREOC by ensuring the 'new Commission will have an effective and cohesive leadership.'(2) The focus of the HREOC's work continued to be the dual role of protecting human rights via complaint handling and conducting research and educative programs into discrimination.

Privacy Act 1988

The Privacy Act 1988 gives effect to the Organisation for Economic Co-operation and Development (OECD) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, as well as Article 17 of the International Covenant on Civil and Political Rights (scheduled to HREOCA). The Act established a Privacy Commissioner, who is a member of HREOC, and who has responsibility for investigation into complaints that an act of practice of an agency has breached information privacy principles, to examine proposed enactments which may require acts which breach privacy principles and to conduct research and education concerning privacy matters.

Disability Discrimination Act 1992

In 1992, the Disability Discrimination Act (DDA) was enacted. Although no international convention exists in relation to disability, the DDA reflected principles found in the United Nations Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, both of which were scheduled to the Human Rights Commission Act 1981 and HREOCA. The DDA generally mirrors the structure and principles of the RDA and the SDA, and provides for a Disability Discrimination Commissioner to administer the Act and conciliate complaints, empowers the Commission to inquiry into unconciliated matters and provides for a focus on research and education. Unlike the RDA and the SDA, the DDA also provides for the Minister to develop disability discrimination standards, which are legally enforceable once tabled in Parliament.

Aboriginal and Torres Strait Islander Social Justice Commissioner

In 1993, as part of the Federal Government's response to the Inquiry into Aboriginal Deaths in Custody, the Aboriginal and Torres Strait Islander Social Justice Commissioner was established as a full time member of the Commission. Unlike the other four Commissioners, the Aboriginal and Torres Strait Islander Social Justice Commissioner was not empowered to investigate and determine complaints (as this remained the role of the Race Discrimination Commissioner). Their role was to report annually to the relevant Minister regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders. Section 209 of the Native Title Act 1993 also placed specific reporting requirements on the Commissioner in relation to the operation of native title laws.

Enforcement of HREOC Determinations

Finally, another notable Commonwealth human rights law was the Sex Discrimination and Other Legislation Amendment Act 1992. This Act sought to rectify the inefficiency of the tripartite structure for resolving discrimination complaints, which comprised attempted conciliation; if conciliation failed, a Commission inquiry with the power to make unenforceable determinations; and finally a possible de novo Federal Court proceedings if an enforceable determination was required. The Act provided for registration in the Federal Court of a determination by the Commission in relation to a complaint of race, sex or disability discrimination. Once registered, the Commission's determination would have effect as if it were an order of the Federal Court unless the respondent applied to the Court with 28 days for review of the determination.

In Brandy v Human Rights and Equal Opportunity Commission,(3) the High Court decided that this scheme of registering determinations granted a non judicial body the power to enforce its decisions, a power reserved only for judicial bodies. Accordingly, the scheme breached the doctrine of the separation of powers and was invalidated as unconstitutional. As an interim response, the Government resuscitated the pre 1992 tripartite scheme, and a more detailed response has been proposed in the Human Rights Legislation Amendment Bill 1997, discussed below.

Human Rights Legislation Amendment Bill 1997

The Human Rights Legislation Amendment Bill 1997, introduced on 4 December 1996 as the Human Rights Legislation Amendment Bill 1996, was passed by the House of Representatives on 19 June 1997. It was introduced into the Senate on 27 June 1997, but is yet to have a second reading debate. (Although the current Bill refers to this earlier Bill as the Human Rights Legislation Amendment Bill (No. 1) 1998, as this has not been altered by the Parliamentary notice papers, the following discussion retains the title Human Rights Legislation Amendment Bill 1997).

The Bill proposes several significant structural changes to the operation of Commonwealth human rights legislation.

• In response to the Brandy decision, the Bill repeals HREOC'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. This proposal reflects both the Coalition's Law and Justice election policy and proposals by the previous Government.
• A judge may delegate to a judicial registrar most of the court's human rights powers, with a view to providing as informal and accessible court hearing as is constitutionally possible. However all registrar decisions are reviewable by a judge on application by one party.
• The Bill proposes to centralise all complaint investigations and conciliation procedures that arise under the DDA, the RDA and the SDA in the office of the President of HREOC, rather than vesting those powers with specific Commissioners.
• The Bill also provides that specific Commissioners can apply to the Federal Court to act as amicus curiae ('friend of the Court') in relation to an unconciliated anti-discrimination matter. This new power is seen as partly balancing specialist Commissioners' loss of power in relation to conciliation.

On 6 February 1997, the Selection of Bills Committee recommended, and the Senate agreed, to refer the Bill to the Senate Legal and Constitutional Legislation Committee for consideration and after two extensions of time, the Committee tabled its report on the Bill on 26 June 1997.(4) The Committee supported the Bill whilst recommending a range of relatively minor amendments.

The Opposition included a substantial minority report which, whilst broadly agreeing to the Brandy response of abolishing the determination powers of the Commission, disagreed with specific issues in relation to this process and with the non-Brandy proposals relating to the role of specialist Commissioners. For example, in relation to proceedings before the Federal Court, the Opposition report recommended: that rules of evidence do not apply in discrimination cases; that no more than a nominal filing fee apply to discrimination cases and that costs generally not be awarded against a party in a discrimination case.

In relation to non-Brandy amendments, the Opposition Report recommended: that conciliation powers should remain vested in specialist commissioners; that specialist commissioners should be empowered to initiate proceedings in the Federal Court as a complainant in particular circumstances and that specialist commissioners should be empowered to enable them to address systemic discrimination.

The Opposition Report also noted that the Government's substantial budget cuts to the Commission and to legal aid would significantly affect the efficacy of Commonwealth human rights and anti-discrimination legislation.

The Australian Democrats also submitted a minority report which disagreed with the Brandy response and proposed a determination and enforcement regime similar to that used in native title cases: a discrimination matter would be initially registered in the Federal Court, then referred to a Tribunal for conciliation, but could be expedited for determination back to the Federal Court if conciliation failed. The Australian Democrats agreed with the Government report that costs be awarded in Federal Court matters at the judge's discretion.

Recent Budget Cuts to HREOC

Between 1997-99, HREOC's budget was decreased from $19.3m to $12.3m,(5) a two year decrease of over 36%. This funding reduction provides one of the most significant savings for the Attorney-General's portfolio in the past two budgets. The Attorney-General has stated that the reduction in HREOC's funding in the 1997-98 budget is 'in real terms only the 4% dividend efficiency saving applicable to all agencies within the Attorney-General's portfolio' and that the further reduction in HREOC's funding in subsequent years amounts in real terms to only about 27%.(6) The Attorney-General has further stated that a 'reduction in funding to [the HREOC]...reflect[s] a need across Government to ensure that in difficult financial times funds are applied and directed in an efficient and streamlined manner.'(7) Specifically, the Attorney-General justified HREOC's funding decrease, particularly the significant decrease in 1998-99, on two major efficiency grounds.

Firstly, the Attorney-General has stated that the HREOC's 'growth over the last decade has been disproportionate to that in other areas of government. Over the past nine years funding to HREOC has increased from about $4 million to more than $20 million - a 500% increase.'(8) HREOC has responded that additional funds have been provided only to handle new responsibilities given to it by the Government or Parliament.(9) These new responsibilities granted by Parliament include the conciliation, inquiry, educative and advocacy functions established by the Privacy Act 1988, the Disability Discrimination Act 1992 and the Racial Hatred Act 1995; and the research, educative and advocacy functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner, established in 1993.

The second justification suggested for the reduction in HREOC's funding is that it reflects a re-structure of, and proposed reduction in, HREOC's functions as set out in the Human Rights Legislation Amendment Bill 1997. HREOC has stated that the inquiry/determination function comprises only a small percentage of its complaint handling work and accounts for only 4% of its budget.(10)

Public Discussion of Abolition of Specialist Commissioners

Prior to the introduction of the Bill, considerable public debate occurred concerning the importance of maintaining specific HREOC Commissioners, as the Attorney-General had on a number of occasions indicated his view that specialist commissioners would be abolished in favour of general commissioners.

This debate took place primarily in relation to the status of the Sex Discrimination Commissioner. The former Sex Discrimination Commissioner, Ms Sue Walpole, resigned in February 1997, 11 months prior to the expiration of her contract. Ms Walpole cited personal reasons for her resignation, however in a press interview several weeks later she warned that a policy vacuum was developing in the Government's approach to women's human rights and sex discrimination.(11) Between February and June 1997, no-one was appointed to the position of acting Sex Discrimination Commissioner. Instead, the HREOC delegated some of the Commissioner's complaint handling powers to the Privacy Commissioner and the Race Discrimination Commissioner. On June 3 1997, the Privacy Commissioner was appointed as the Acting Sex Discrimination Commissioner for a period of 3 months, which was extended until 8 March 1988, when the new Commissioner, Ms Susan Halliday, was announced.

Concern that the delay in appointment of a Sex Discrimination Commissioner indicated a firm Government intention to abolish specialist commissioners was widespread and included criticism by Liberal party women(12) and non-government organisations chosen to consult with the Government on women's issues.(13) One Liberal woman lobbyist was quoted as saying 'I'm so sick of fighting to keep the gains that we've got ... We're having to fight so bloody hard to keep anything, let alone advance anything.'(14) A typical criticism advanced by a former Sex Discrimination Commissioner, Ms Quentin Bryce, stated that the loss of a specific sex discrimination commissioner would result in a loss of expertise on women's issue, a loss of validation of specific forms of discrimination suffered by women and a possible downgrading of women's issues within the Commission.(15)

In an unusual move, the United Nations Committee on the Elimination of Discrimination Against Women (charged with overseeing obligations under the Convention on the Elimination of All Forms of Discrimination Against Women) stated in an assessment of Australia's current women's human rights record that it 'was concerned about the delay in appointing a Sex Discrimination Commissioner'.(16)

When the Government declined to extend the term of the former President of HREOC Sir Ronald Wilson, (who was at odds with the Government over key recommendations of the national inquiry into the separation of Aboriginal and Torres Strait Islander Children(17) and who apparently unsuccessfully sought an extension of his term) these concerns were widened to encompass the opinion that abolition of specific commissioners partly resulted from the Commissioner's critical approach to Government action.(18)

In light of this significant debate, it was reported that the Attorney-General's original cabinet submission recommending replacement of specific commissioners by generic commissioners was withdrawn in late July 1997.(19) In late September, it was reported that Cabinet had made an 'in principle' decision to retain the position of a Sex Discrimination Commissioner,(20) a decision which was greeted as a victory by Liberal women and non-government organisations.(21) On 23 September 1997, the Attorney-General issued a Press release announcing the Government's intention to establish the Human Rights and Responsibilities Commission, comprised of a President and three Deputy Presidents with general responsibilities for sex discrimination and equal opportunity, human rights and disability discrimination and Aboriginal and Torres Strait Islander social justice and racial discrimination.(22)

Status of Current Commissioners

President of HREOC: Professor Alice Tay, whose appointment was announced on 8 March 1998. Professor Tay replaced Sir Ronald Wilson, whose term expired on 31 July 1997.

Human Rights Commissioner: Mr Chris Sidoti, whose term expires in August 2000.

Sex Discrimination Commissioner: Ms Susan Halliday, whose appointment was announced on 8 March 1998. Ms Halliday replaced Ms Sue Walpole who resigned in February 1997.

Race Discrimination Commissioner: Ms Zita Antonias, whose terms expires in September 1999.

Disability Discrimination Commissioner: vacant. The term of the former Commissioner, Ms Elizabeth Hastings, expired in December 1997. The Human Rights Commissioner, Mr Chris Sidoti, has been Acting Disability Discrimination Commissioner since that time.

Aboriginal and Torres Strait Islander Social Justice Commissioner: vacant. The term of the former Commissioner, Mr Michael Dodson, expired on 22 January 1998. The Race Discrimination Commissioner, Ms Zita Antonias, has been appointed as Acting Commissioner for a period of one year.

Main Provisions

Schedule 1 - Amendments to the Human Rights and Equal Opportunity Commission

Human Rights and Responsibilities Commission

Items 1 and 2 amend the title Human Rights and Equal Opportunity Commission Act 1986 to the Human Rights and Responsibilities Act 1986.

Item 4 amends the definition of 'the Commission' from the Human Rights and Equal Opportunity Commission to the Human Rights and Responsibilities Commission.

All references in the HREOCA, the DDA, the RDA and the SDA to the Human Rights and Equal Opportunity Commission Act 1986 and the Human Rights and Equal Opportunity Commission are consequentially amended to reflect these name changes.

Item 15 in effect repeals the definition of the Human Rights Commissioner in HREOCA.

Item 47 and item 54 repeal the definition and establishment in HREOCA of the Aboriginal and Torres Strait Islander Social Justice Commissioner. Item 48 repeals the subsection which requires that a person appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner must have 'significant experience in community life of Aboriginal persons or Torres Strait Islanders.'

Item 6, 7 and 8 consecutively repeal the definition in HREOCA of the Disability Discrimination Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner. These repeals are mirrored in amendments to the DDA, the RDA and the SDA.

Items 70 and 84 repeal the definition and establishment of the Disability Discrimination Commissioner in the DDA.

Items 93 and 13 repeal the definition and establishment of the Race Discrimination Commissioner.

Items 117 and 130 repeal the definition and establishment of the Sex Discrimination Commissioner.

Item 11 amends the definition of the composition of the Human Rights and Responsibilities Commission. It repeals the current list of:

• President
• Human Rights Commissioner
• Race Discrimination Commissioner
• Aboriginal and Torres Strait Islander Social Justice Commissioner
• Sex Discrimination Commissioner
• Privacy Commissioner
• Disability Discrimination Commissioner

and replaces it with:

• President
• Deputy President responsible for human rights and disability discrimination
• Deputy President responsible for racial discrimination and social justice
• Deputy President responsible for sex discrimination and equal opportunity.

Notably, the only specific title not retained is the Aboriginal and Torres Strait Islander Social Justice Commissioner. (The Privacy Commissioner is considered in Schedule 2.)

Item 16 in effect provides that to be qualified for appointment as a Deputy President, the Governor-General must be satisfied that the person has 'appropriate qualifications, knowledge or experience.' The terms and conditions of appointment reflect those currently provided in HREOCA for the Human Rights Commissioner.

Functions of the Human Rights and Responsibilities Commission

Item 17 reorders the functions of the Commission to provide a focus on the following:

• promoting understanding, acceptance and public discussion of human rights and the responsibilities of persons and organisations to respect those rights
• disseminating information on human rights and the responsibility of persons and organisations to respect those rights
• undertaking research, educational and other programs promoting human rights on behalf of the Commonwealth
• preparing and publishing guidelines concerning human rights which can be conciliated by the Commission.

Currently, these functions of the Commission are already provided for in HREOCA, except for the function of disseminating information, although this is arguably covered by the Commission's incidental power. These functions, however, have been 'upgraded' to underline their new importance. The only proposed 'higher' functions of the Commission are to:

• carry out those functions conferred by the RDA, the SDA and the DDA (currently section 11(1)(a)) and
• inquire into and attempt conciliation of a complaint of unlawful discrimination (proposed by the Human Rights Legislation Amendment Bill 1997).

Item 31 mirrors the amendments made in item 17 in relation to re-arranging the existing functions of the Commission relating to equal opportunity in employment. It provides that the functions of the Commission shall be to:

• promote understanding, acceptance and public discussion of equal opportunity in employment and the responsibility of persons and organisations to respect that equality
• disseminate information on equality of opportunity in employment and responsibilities of persons and organisations to respect that equality
• undertake research and educational programs on behalf of the Commonwealth promoting that equality
• prepare and publish guidelines for avoiding acts or practices which transgress these rights and responsibilities.

All these functions are already specifically in the Act, except for dissemination of information which is arguably covered by the Commission's incidental function.

Consequential Changes to the Functions of the Commission in Relation to the DDA, the RDA, the SDA and the Aboriginal and Torres Strait Islander Social Justice Commissioner

Disability Discrimination Act 1992

Item 77 amends the heading in Part 4 of the DDA to 'Functions of the Human Rights and Responsibilities Commission'. Currently, that part of the Act is titled 'Inquiries and Civil Proceedings' but the Human Rights Legislation Amendment Bill 1997 proposes to amend it to 'Disability Discrimination Commissioner and functions of the Commission'.

Item 78 provides that the first four functions of the Commission in relation to disability discrimination are:

• promoting an understanding of, acceptance of and compliance with the DDA
• disseminating information on disability discrimination and on the responsibility of persons and organisations to avoid such discrimination
• undertaking research, educational and other programs promoting the DDA on behalf of the Commonwealth
• preparing and publishing guidelines concerning avoidance of disability discrimination.

Currently, all these functions are in the DDA except for dissemination of information, although this could be interpreted as covered by the Commission's current incidental powers.

Racial Discrimination Act 1975

Item 102 amends the heading in Part III to 'Functions of the Commission'. Currently the heading is 'Inquiries and Civil Proceedings' but the Human Rights Legislation Amendment Bill 1997 proposes to amend it to 'Race Discrimination Commissioner and Functions of the Commission'.

Item 105 inserts a new function as 20(b) to disseminate information on racial discrimination and on the responsibility of persons and organisations to avoid such discrimination.

All other functions currently listed for the Race Discrimination Commissioner remain, except for the power to inquire into and attempt conciliation of complaints under the RDA, as this function is proposed to be repealed by the Human Rights Legislation Amendment Bill 1997.

Sex Discrimination Act 1984

Item 122 amends the title of Part III of the SDA to 'Functions of the Human Rights and Responsibilities Commission'. Currently Part III is entitled 'Inquiries and Civil Proceedings'. The Human Rights Legislation Amendment Bill 1997 proposes to amend the title to 'Functions of the Human Rights and Equal Opportunity Commission'.

Item 123 rearranges the functions of the Commission so that the first four functions are to:

• promote an understanding and acceptance of, and compliance with, the SDA
• disseminate information on relevant grounds and on responsibility of persons and organisations to avoid such discrimination
• undertake research and educational programs on behalf of the Commonwealth for promotion of the SDA
• prepare and publish guidelines for avoiding relevant forms of discrimination under the SDA.

Currently, all these functions are in the SDA except for dissemination of information, although this could be interpreted as covered by the Commission's current incidental powers.

Aboriginal and Torres Strait Islander Social Justice Commissioner

Items 45 repeals the heading entitled 'Aboriginal and Torres Strait Islander Social Justice Commissioner' and replaces it with 'Functions relating to Aboriginal persons and Torres Strait Islanders.' The functions relating to Aboriginal persons and Torres Strait Islanders are not changed by the Bill. However, the specific reference to Aboriginal and Torres Strait Islander social justice is not retained in the designated responsibilities of the relevant Deputy President.

Power to Intervene in Court Proceedings

Currently, the HREOCA, the DDA, the RDA and the SDA provide the Commission with the power to seek a court's leave to intervene in court proceedings which involve relevant human rights and discrimination issues.

Items 21 and 33 (HREOCA), 80 (DDA), 106 (RDA) and 125 (SDA) propose that any intervention by the Commission in a court hearing involving human rights or discrimination issues must now have leave of the Attorney-General before seeking leave of the court.

Items 22 and 34 (HREOCA), 82 (DDA), 109 (RDA), 127 (SDA) provide that the Attorney-General may have regard to the following matters when considering whether leave to seek leave of the court to intervene should be granted:

• whether the Commonwealth has already intervened in proceedings
• whether, in the Attorney's view, the proceedings may, to a significant extent, affect the human rights of, or involve issues of discrimination against, persons not parties to the proceedings
• whether, in the Attorney's view, the proceedings have significant implications for the administration of the Commonwealth disability, race and sex discrimination acts
• whether, in the Attorney's view, there are special circumstances for the Commission to intervene, such as intervention being in the public interest.

Other Amendments Concerning Centralisation of Conciliation Powers in the President

Item 25 redresses an anomaly in the Human Rights Legislation Amendment Bill 1997, a key aim of which is to centralise complaint handling in the office of the President. That Bill in general prohibits the President from delegating her or his powers in relation to complaint handling and the referral of discriminatory awards to other bodies. However, it allows delegation to the Human Rights Commissioner complaint making power in respect of complaints of breaches of internationally recognised human rights and equal opportunity in employment. Item 25 proposes to repeal this delegation power in line with the general prohibition of delegation proposed in the 1997 Bill.

Item 26 clarifies that the amendments concerning the structure of the Deputy Presidents do not limit the powers of the Commission or the President to delegate powers to a member of the Commission which do not concern inquiries or complaint handling.

Limiting Commission's Powers Concerning Infringement of a Human Right

Items 30 and 37 relates to the Commission's ability to conciliate and report on transgressions of human rights, other than those rights which are defined as unlawful discrimination under the DDA, RDA or the SDA. Currently the Commission is empowered to make recommendations to a person concerning a breach of a human right, and those recommendations can include payment of compensation to a person who has suffered loss or damage as a result of an act of practice. This item removes that power, limiting the Commission's role to recommending any action other than the payment of compensation of damages.

Amicus Curiae Role and Deputy Presidents

Items 58-61 amend proposed provisions in the Human Rights Legislation Amendment Bill 1997 relating to the power of Commissioners to seek leave to appear as amicus curiae in Federal Court proceedings which arise following a complaint to the Commission. Item 59 replaces all references to Commissioners with references to Deputy Presidents. Item 60 provides that any Deputy President has the right to seek leave to act as amicus curiae, regardless of their specialist role, as a way of ensuring flexibility and efficient resource use. Item 61 provides that the Deputy Presidents must consult amongst themselves before seeking leave to act as amicus curiae.

Abolition of Community Relations Council under the Racial Discrimination Act 1975

The RDA establishes a Community Relations Council charged with the task of advising the Minister and the Commission concerning observance and implementation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) through promotion of educational programs, research, publication and dissemination of materials, promotion of understanding and tolerance and any other relevant matter related to observance of the Convention.

Item 113 repeals, inter alia, those parts (Part V and parts of Part VI) of the RDA which established the Community Relations Council and the provision of staff for the Council. Items 91, 94, 95 and 98 repeal the RDA's definition of Chairman, Deputy Chairman and member of the Community Relations Council and the Council.

The Explanatory Memorandum notes that no members have ever been appointed to the Community Relations Council so that it has never in fact come into being. The Explanatory Memorandum states that, pursuant to section 15 of HREOCA, the new Commission will retain the power to 'work with and consult appropriate persons, governmental organisations and non-governmental organisations'.

Transitional Provisions Concerning Continuity of Commission's Legal Existence

Item 132 provides that the Bill does not affect the continuity of the Commission's existence. This will ensure that legal responsibilities of the current Commission continue under the new structure.

Item 132 also provides that the Bill does not affect the continuity of the President's appointment.

There is no provision for the continuity of current specialist Commissioners.

Schedule 2 - Office of the Privacy Commissioner

Items 1 and 2 amend the Privacy Act to establish the new Office of the Privacy Commissioner, which consists of the Privacy Commissioner and the staff appointed by the Commissioner.

Items 4-6 relate to the appointment of staff and the powers of the Privacy Commissioner in relation to her or his staff. As this Schedule anticipates the passage of the Public Service Act Bill, two alternative legal scenarios are provided. Item 4 provides that if the Public Service Bill 1988 has not commenced when this Act comes into operation, then staff shall be appointed under the Public Service Act 1922 and the Commissioner shall have all powers of a Departmental Secretary in relation to staff and consultants. Item 6 provides that if the Public Service Act 1998 has commenced, staff shall be employed under that Act and the Commissioner and the staff shall constitute a Statutory Agency for the purposes of that Act with the Commissioner as the Head of the Statutory Agency.

Concluding Comments

The Government has concluded after a detailed review that HREOC as presently structured is inefficient and top-heavy. The changes proposed arguably seek to retain the general thrust of the present anti-discrimination regimen whilst streamlining the mechanisms for protecting individual rights.

The following remarks therefore should be treated as a template for testing the specific policy proposals advanced in the Bill and not as a blanket criticism of government policy.

Amendment of Name to Human Rights and Responsibilities Commission

The Government has provided limited explanation for changing the name of the Human Rights and Equal Opportunity Commission to the Human Rights and Responsibilities Commission. In his Second Reading Speech, the Attorney-General links the change of name to the Commission's new emphasis on educating business and the community as to their responsibilities to respect human rights and avoid discrimination, an emphasis which will 'be the catalyst for a fundamental cultural change in the Commission.'(23) The Attorney-General has noted that:

The change in name has attracted limited but sceptical comment. Considering the concept of responsibilities an Age editorial commented that:

Keith Suter, convenor of he Human Rights Committee, International Law Association, noted that the inclusion of responsibilities is 'intriguing' but lacking in substance and that the Attorney-General would 'need to be careful that this is not seen as simply a gimmick'.(26) The Opposition were more brusque, stating that the name change was:

It is notable that this change in name comes at a time when significant media attention has been granted to individuals and groups which characterise certain human rights and anti-discrimination measures as 'special privileges' or 'special favours', particularly measures aimed at ensuring equality for indigenous peoples and women. In this context, it is possible that linking the concept of 'rights' with 'responsibilities' could unintentionally result in a cultural shift in which those subjected to human rights violations are cast as prone to pursue such rights irresponsibly.

It is possibly also worth noting that the Government offers no link between the change of name and the current project to develop a Universal Declaration on Human Responsibilities by the Inter-Action Council, a non-Government organisation comprised of elder statesmen including Mr Malcolm Fraser, Mr Jimmy Carter, and Mr Lee Kuan Yew.(28) Malcolm Fraser has noted that a key argument advanced by the Council for the development of the Declaration is that:

On one view, this characterisation of human rights as something which one passively demands fails to capture the experience of many people subjected to human rights violations who not only suffer the indignity of discrimination but must actively pursue a legal remedy in order to secure their right to equality. Such a characterisation potentially lends itself to the perception that human rights are privileges rather than rights which must be tempered by responsible action on the part of those discriminated against. As this project has attracted international interest, it is foreseeable that the concepts it espouses will inform future understandings of the role of the proposed Human Rights and Responsibilities Commission. The importance of symbolic issues and concerns should not, however, be overstated.

Abolition of Specialist Commissioners

The Attorney-General has argued that the current structure of six specialist commissioners is top heavy and inefficient. By replacing specialist commissioners with three Deputy Presidents with responsibility for particular subject areas, it is argued the efficacy of the Commission will be enhanced by:

• providing for a more streamlined and collegiate structure
• ensuring Commission members have a common responsibility to protect and promote human rights for all Australians whilst maintaining specific expertise
• removing the perception that the Commission seeks only to protect sections of the community for whom a specific Commissioner exists and
• enabling Deputy Presidents to develop expertise in other areas without needing to consider appointing new specialist commissioners as each new area develops.

The Human Rights Commissioner, Mr Chris Sidoti, has stated that the amalgam of generalist Deputy Presidents with specific responsibilities is a 'welcome compromise' to the initial proposal of simply establishing generalist commissioners.(30) Supporting this proposal, a Canberra Times editorial noted that 'discrimination is discrimination ... It should not be beyond a commissioner to become expert in more than one field'(31) and Mr Brett Walker of the Law Council has stated that reform would correct some administrative deficiencies in HREOC.(32) More strongly, a former Minister in the previous Government, Hon. Gary Johns, has remarked that there had been:

Criticisms can be levied at both the necessity and efficacy of this model in terms of its substantive protection of those groups of Australians whose human rights are most persistently undermined.

First, the proposal reduces only five and not six specific commissioners to three Deputy Presidents, as the Privacy Commissioner is not part of the Deputy President structure. Therefore, only two specific commissioners have been 'streamlined'. This represents a minimal financial saving and it is unclear how a reduction from five to three will instil a significantly new collegiate approach to discrimination issues.

Second, different forms of discrimination operate in often radically different ways and although it is possible for a Deputy President to come to grips with different forms of discrimination, the depth of understanding developed and the effectiveness of the Deputy President is reliant on the amount of time and resources available. Given the significant budget cuts to HREOC, it might be expected that the level of resources allocated to each Deputy President may significantly impede their substantive appreciation of the forms of discrimination they are charged with ameliorating and hence significantly limit the Government's goal of sustaining adequate expertise. This difficulty may be compounded if, as suggested above, the Attorney-General places additional responsibilities on a Deputy President rather than appointing a specific Commissioner.

Third, the loss of specialist commissioners may not only result in a loss of expertise but may undermine the symbolic importance and visibility that specialist commissioners offer particular forms of discrimination. This could be a particular concern in relation to the merger of the disability discrimination and human rights commissioners and the race discrimination and Aboriginal and Torres Strait Islander Social Justice commissioners. It is foreseeable that given both the categories of 'race' and 'human rights' are more general than the categories of 'Aboriginal and Torres Strait Islander' or 'disability', the relevant Deputy President for these areas may neither be indigenous nor have a disability. It is notable in this regard that the phrase 'Aboriginal and Torres Strait Islander' does not even appear in the specific responsibilities of the relevant Deputy President, despite the fact that the Government stated on several occasions that such a specific title would be granted.(34)

Fourth, it may be of concern to some that the Attorney-General has emphasised that abolishing specific commissioners will soothe a supposed perception that the Commission only acts in the interests of those groups represented by a specific Commissioner rather than all Australians. Presumably, the emphasis on 'all Australians' is directed at the idea that the Commission can only benefit the entire community if it formalistically adheres to the assumption that all people are equally capable of being subjected to discrimination. From a human rights law perspective, this formalism is fundamentally misplaced. Critics of the government's position would argue that the raison d'etre for the establishment of the Commission and the development of specific international human rights treaties is the fact that certain social groups, for example women, indigenous peoples, peoples with a disability, are systematically discriminated against in a way other groups are not.

Deputy President's Focus on Education

The Bill provides that the key focus of the Deputy Presidents will be on human rights education and assisting business and the community to comply with human rights standards. When combined with the changes proposed in the Human Rights Legislation Amendment Bill 1997, the Deputy Presidents will have a significantly reduced role as compared to the current Commissioners.

Although the proposed focus on research, education and information dissemination may assist in addressing systemic discrimination matters, it is notable that these powers are not new, but have always been a focus in anti-discrimination legislation. More importantly, the significant budgetary decrease to HREOC will affect the new focus on education. The Attorney-General has stated that the Commission will now 'have to prioritise the things they investigate' rather than investigate all complaints of discrimination.(35) However, regardless of such directions, there is a statutory obligation on HREOC to process complaints and HREOC will be required to allocate a sufficient budget to these responsibilities. Accordingly, the pool of money left for Deputy President work on education, research and information dissemination could be small, narrowing the scope and effectiveness of this work.

When considering the compound effect of these important changes on the role of commissioners, an Age editorial stated that they:

Restriction on Commission Intervention in Court Matters

The Bill's proposals to require the Attorney-General's permission before the Commission can seek leave of a court to intervene in a matter raises several issues.

Firstly, a key policy which threads through both this Bill and the Human Rights Amendment Bill 1997 is the emphasis on the role of Commissioners/Deputy Presidents as human rights educators. To this end, one of the main proposals in the 1997 Bill was to facilitate the Commissioner's role in acting as amicus curiae in anti-discrimination matters before the Federal Court. The potential to intervene in a relevant Federal, Family or High Court matter is similar to such an amicus role and enhances the Commission's ability to have a systemic and educative impact on the development of human rights law in Australia. Consequently, it may seem contrary to this policy direction that this Bill is providing a new hurdle for the Commission to clear before it is able to seek leave of the court for such an intervention.

Secondly, in the context of limited resources for Commission's work, it may also appear curious that the Attorney-General's resources may be designated to duplicate a basic court process.

Thirdly, the intervention issue potentially raises concerns in relation to conflict of interest and the independence of the Commission. The Commonwealth is often a party in matters in which it would be relevant for HREOC to intervene, or the matter may widen the scope of discrimination law and hence have financial or other resources implications for the Government.

For example, in recent times, HREOC has been granted leave by the High Court, the Federal Court and the Family Court to intervene in the Hindmarsh Island Bridge case(37); the Teoh case(38) (the case concerning whether administrative decision makers were required to take Australia's international human rights obligations into consideration when making a decision); and B and B(39) (a Family Court matter in which the Attorney-General appeared and put a contrary view to the submission of HREOC). In each instance, HREOC put a significantly different submission to that of the Commonwealth.

The previous President of HREOC, Sir Ronald Wilson has recently stated that proposals to require the Attorney-General's permission to seek leave to intervene in a court matter impinged on the watchdog's ability to speak out on human rights.(40)

Limiting Commission's Powers Concerning Infringement of a Human Right

By way of explanation as to the removal of the Commission's powers to recommend payment of compensation for a particular human rights transgression, the Explanatory Memorandum states that the recommendation to pay compensation of damages cannot be enforced because they relate to acts which are not deemed unlawful. However, this is the case with any recommendation made by the Commission in these circumstances. It is not explained why recommendations for compensation or damages have been targeted for removal.

Transitional Provisions for Continuity of Current Commissioners in the new Commission

Although the transitional provisions provide for legal continuity of the President's appointment under the new Human Rights and Responsibilities Commission, no such provision is made for the continuity of the current specific commissioners. Therefore those commissioners would legally have to seek reappointment to the new Commission.

Endnotes

2. Senate, Debates, vol. 82, 25 September 1979.

3. Senate, Debates, vol. 105, 12 September 1984.

4. (1995) EOC 2 - 662.
5. Senate Legal and Constitutional Legislation Committee, Human Rights Legislation Amendment Bill 1996, June 1997.

6. 1997-1998 Portfolio Budget Statement of the Attorney-General's Department, 116.
7. Attorney-General (Daryl Williams), 'Upholding Human Rights', Press release no. 269, 15 May 1997.

8. ibid.

9. ibid.

10. Human Rights and Equal Opportunity Commission, 'Human Rights Commission Budget Cuts', Press release, 16 May 1997.

11. ibid.

12. The Age, 12/2/1997.

13. The Sydney Morning Herald, 16/9/1997.

14. Australian Women's Non-Government Organisations, 'Don't Shoot the Sex Discrimination Commissioner!!', Press release, 28/7/1997.

15. The Sydney Morning Herald, 16/9/1997.

16. ibid.

17. Committee on the Elimination of Discrimination Against Women, Consideration of Third Periodic Report of Australia, 22 July 1997.

18. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth, Canberra, 1997

19. The Australian Financial Review, 31/7/1997.

20. The Australian, 28/7/1997.

21. The Australian Financial Review, 20/9/1997.

22. The Sydney Morning Herald, 20/9/1997.

23. Attorney-General (Daryl Williams), 'Human Rights and Responsibilities Commission', Press release no. 341, 23/9/1997.
24. House of Representatives, Official Hansard, No. 5, 1998, 8 April 1998.

25. Attorney-General (Daryl Williams), 'Human Rights and Responsibilities Commission', Press release no. 404, 8 April 1998.

26. The Age, 29/9/1997.

27. The Age, 29/9/1997.

28. Senator the Hon Nick Bolkus, 'The New Human Rights and Responsibilities Commission is a Sham', Press release no. 42/97, 23/9/1997.

29. The Inter-Action Council has produced a draft Declaration which it hopes to be adopted by the United Nations General Assembly to stand on equal footing with the Universal Declaration of Human Rights.

30. The Australian, 12/9/1997.

31. The Age, 24/9/1997.

32. The Canberra Times, 25/9/1997.

33. The Age, 24/9/1997.

34. The Australian, 31/7/1997.

35. Attorney-General (Daryl Williams), 'Human Rights and Responsibilities Commission', Press release no. 404, 8/4 1998.

36. The Sydney Morning Herald, 24/9/1997.

37. The Age, 31/7/1997.

38. Kartinyeri v The Commonwealth (1998) High Court of Australia 22 .

39. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353.

40. B and B: Family Law Act 1995 (1998) 22 Fam LR 453.

41. The Age, 12/5/1998.

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10 June 1998
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