Bills Digest No. 184 2002-03
Australian
Human Rights Commission Legislation Bill
2003
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 & Copyright Details
Passage History
Australian Human Rights Commission
Legislation Bill 2003
Date Introduced:
27 March 2003
House: House of Representatives
Portfolio: Attorney-General
Commencement:
On the day which the Act receives Royal
Assent. Consequential amendments to other acts outlined in
Schedules 1 and 2 commence on a day to be fixed by proclamation or
6 months from the date the Act receives Royal
Assent.
The purpose of the Bill is to amend the
Federal human rights legislation to:
rename the Human Rights and Equal Opportunity
Commission (the Commission) the Australian Human Rights
Commission
abolish the five specific commissioners
responsible for Aboriginal and Torres Strait Islander social
justice, human rights, disability, race and sex discrimination and
replacing these specialised commissioners with three generic Human
Rights Commissioners
require the Commission to use the by line
human rights everyone s responsibility
amend the statutory functions of the
Commission to emphasise education and information
dissemination;
require the consent of the Attorney-General
before the Commission can seek leave of a court to intervene in a
court proceeding related to human rights and discrimination;
centralise inquiry and complaints handling
under the authority of the President
enable the Attorney-General to appoint
part-time Complaints Commissioners to assist the President with the
inquiry and complaint handling function
remove the Commission s power to recommend the
payment of compensation to remedy or reduce loss or damage suffered
by a victim of discrimination, and
repeal existing provision for establishing the
Community Relations Council and Advisory Committees under the
Race Discrimination Act 1975( RDA).
The majority of the provisions of this Bill
were originally introduced into the House of Representatives on 8
April 1998 as the Human Rights Legislation Amendment Bill (No. 2)
1998 (the 1998 Bill). Parliamentary debate on the original 1998
Bill was not completed before the 38th Parliament was
prorogued. The Bill was reintroduced as the Human Rights
Legislation Amendment Bill (No.2) 1999 which subsequently lapsed
when the Federal Election was called in late 2001.
Major aspects of the 1998 Bill were considered
by the Senate Legal and Constitutional Legislation Committee in
1998 and 1999. The Committee's report was tabled on 17 February
1999.(1) The Majority Report of the Committee generally
recommended passage of the Bill, although it also recommended
several significant changes. The Minority Reports of the Opposition
and the Australian Democrats recommended against passage of the
Bill.(2)
On 13 October 1999 the Government proposed
amendments to the 1999 Bill removing the requirement for approval
of the Attorney-General to intervene in court proceedings and
providing for continuity of three of the then current Commissioners
as Deputy Presidents. The Opposition accepted the proposed
amendments and the Bill passed the House of Representative on that
day.
As noted above, the Human Rights Legislation
Amendment Bill (No.2) 1999 lapsed in 2001. The new Australian Human
Rights Commission Bill 2003 retains the major features of the
earlier Bill as introduced and amended with three important
differences:
the proposed name change to Australian Human
Rights Commission replaces the previous proposal of the Human
Rights and Responsibilities Commission
the Bill reinstitutes the requirement that the
Commission obtain the consent of the Attorney-General to intervene
in court proceedings, and
introduces a new and additional power for the
Attorney-General to appoint part-time Complaints Commissioners to
assist the President to discharge that function.
The current Bill was referred to the Senate
Legal and Constitutional Legislation Committee which reported on 29
May 2003. The Committee s report and access to submissions are
available at
http://www.aph.gov.au/senate/committee/legcon_ctte/reports/index.htm.
A summary of the Committee s findings and
recommendations are set out in the Concluding Comments below.
An overview of the existing Human Rights and
Equal Opportunity Commission
and history of Commonwealth human rights laws may be found in Bills
Digest
No.146, 1998-99 Human Rights Legislation Amendment Bill
1999.(3) Access to the
Human Rights and Equal Opportunity Commission website is through
http://www.hreoc.gov.au/media_releases/2003/32_03.htm.
Schedule 1 Amendment of the Human Rights and
Privacy Legislation
Items 1 and 2
amend the title Human Rights and Equal Opportunity Commission Act
1986 ( HREOCA ) to the Australian Human Rights Commission Act
1986.
Item 4 amends the
definition of the Commission from the Human Rights and Equal
Opportunity Commission to the Australian Human Rights
Commission.
Item 5 inserts
the definition of Complaints Commissioner meaning a person who is
appointed as a Complaints Commissioner under section
42A.
Item 7 inserts the definition of a Human Rights
Commissioner meaning a member of the Commission appointed under
section 8B.
Items 6, 9 and 10
consecutively repeal the definition in HREOCA of the Disability
Discrimination Commissioner (DDA), the Race Discrimination
Commissioner (RDA) and the Sex Discrimination Commissioner (SDA).
These repeals are mirrored in amendments to the DDA, the RDA and
the SDA which have the effect of abolishing the positions of the
specialised Commissioners established under those
Acts.
Item 13 deals
with the composition of the Australian Human Rights 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,
and
Disability Discrimination
Commissioner
and replaces it
with:
President, and
3 Human Rights
Commissioners.
Item 57 repeals
subsection 46B 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.' This specific
requirement of experience in community life of Aboriginal persons
or Torres Strait Islanders is not repeated in those provisions dealing with the appointment
of the three Human Rights Commissioners (see Item 19
below).
Item 18 amends
subsection 8B(2) to provide that a person is not qualified to be
appointed as a full time Commissioner by the Governor General (GG)
unless the Minister is satisfied that the person has appropriate
qualifications, knowledge or experience.
Item 19 adds
subsection 8B(3) which requires that before the GG makes the
appointment the Minister must be satisfied that the President, the
other Human Rights Commissioner and the person, as a group, have
expertise in the variety of matters likely to come before the
Commission.
Item 20 reorders
the functions of the Commission to provide a focus on the
following:
promoting understanding,
acceptance and public discussion of human rights in
Australia and of the
responsibility 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, and
preparing and publishing
guidelines concerning human rights which can be
conciliated by the Commission.
Currently, these functions of the
Commission are 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 paragraph
11(1)(a)), and
inquire into and attempt to
conciliate complaints of unlawful discrimination
Item 36 reorders
the functions of the Commission under Division 4 relating to equal
opportunity in employment. It amends paragraph 31(a) by inserting
the following functions:
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,
and
prepare and publish guidelines for
avoiding acts or practices which transgress these rights and
responsibilities.
All these functions are already
specified in the Act, except for dissemination of information,
which is arguably covered by the Commission's incidental function.
The existing subparagraphs s31(c), (d) and (h) which deal with
these functions are repealed.
Consequential
changes to the functions of the Commission in relation to the DDA,
RDA and SDA
Disability Discrimination Act
1992
Item 89 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,
and
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 117 inserts
a new function 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.
Sex Discrimination Act
1984
Item 134
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 the responsibility of persons and
organisations to avoid such discrimination
undertake research and educational
programs on behalf of the Commonwealth for promotion of the SDA,
and
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.
Item 25 inserts
new subsections 11(1A) and (1B) that require the
Commission to raise public awareness of the importance of human
rights by using, and encouraging the use of, the expression human
rights everyone s responsibility . The Commission may incorporate
the expression in its logo and its stationery but is not required
to do so by the amendment.
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 that involve
relevant human rights and discrimination issues.
Items 26 and 39
(HREOCA), 93 (DDA), 121 (RDA) and
138 (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 26 and 39
(HREOCA), 93 (DDA), 121 (RDA),
and 138 (SDA) provide that the Attorney-General
may (but need not) have regard to the following matters when
considering whether approval to seek leave of the court to
intervene should be granted:
whether the Commonwealth has
already intervened in the 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 legislation, and
whether, in the Attorney's view,
there are special circumstances for the Commission to intervene,
such as intervention being in the public
interest.
Consent is not required if the
President of the Commission is a Justice of the High Court or the
Federal Court or was a Justice of the High Court or Federal Court
immediately before becoming the President.
In these circumstances, the
Commission is only required to provide written notice accompanied
by a statement of why the Commission considers it appropriate to
intervene. The notice must be given at a reasonable time before the
Commission seeks the leave of the court.
The provisions create a two tier
system where the requirement for consent depends on the status of
the incumbent President at the time of the
application.
Centralisation of complaints handling in
the President
Item 29 provides
that the President may delegate to the Complaints Commissioners the
power to inquire into, conciliate complaints and report on
complaints concerning an act or practice that is inconsistent with
human rights or discrimination in relation to
employment.
Item 31 clarifies
that the President is prohibited from delegating to another member
of the Commission any of the President s powers in relation to the
handling of complaints.
Item 53 inserts
new section 42A to enable the Attorney-General to
appoint legally qualified persons as Complaints Commissioners to
assist the President in discharging the complaints function.
Complaints Commissioners are not members of the
Commission.
The Complaints Commissioner may be
appointed for a period of up to five years with the possibility of
further appointment. The Attorney-General has the discretion to
determine the terms and conditions of appointment and to terminate
the appointment at any time.
For purposes of this section,
legally qualified person means a person who is a serving or former
Judge of a court created by the Commonwealth Parliament or a State
Parliament (paragraph 42A(7)(a)). A
Justice of the High Court would not be eligible for appointment as
a Complaints Commissioner. The High Court of Australia is a
creation of the Constitution not the Parliament. It also includes
lawyers admitted to practice on the roll of a State or Territory
Supreme Court, the High Court or a Federal Court. (paragraph
42A(7)(b)).
Item 69 inserts
new section 46PNA which sets out the role of the
Complaints Commissioner. The Complaints Commissioner has a duty to
exercise the functions of the President to inquire into a complaint
referred by the President and attempt to conciliate the complaint.
Those functions can only be exercise when delegated by the
President.
Item 32 ensures
that in undertaking the delegated functions a Complaints
Commissioner can act effectively by exercising any power conferred
on a member of the Commission, for example, the power to obtain
information and documents under section 21 of the
HREOCA.
Removal of
the Commission's powers to recommend payment of
compensation
Items 35 repeals
the Commission's power to recommend certain remedies when it
considers that an act or practice has breached a the complainants
human rights or amounts to discrimination (but is not unlawful
discrimination under the DDA, RDA or the SDA). Currently, as part
of the Commission s complaint and inquiry function, the Commission
is empowered to make recommendations for remedial action including
the payment of compensation to a person who has suffered loss or
damage.
Item 35
substitutes the existing paragraph 29(2)(c) with a new provision to
remove the Commission s power to recommend payment of monetary
compensation of damages. The Commission s power is recommendatory
only and not enforceable in the Courts.
Abolition of Community Relations Council under
the RDA
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 124 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 103, 107, 108 and
110 repeal the RDA's definition of Chairman, Council,
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 and
Commissioners
Item 144 provides
that the Bill
does not affect the continuity of the Commission's
existence or the continuity of the appointment of the President or
the Human Rights Commissioner. This will ensure that legal
responsibilities of the current Commission continue under the new
structure.
Item 146 provides
that the existing Commissioners become the new Human Rights
Commissioners, providing no more than three such Commissioners are
in office at the commencement of the provision. The item also
provides for preservation of benefits based on continuity of
service. Each existing Commissioner will continue to hold office as
a Human Rights Commissioner for the remaining period of their
appointment and is eligible for reappointment.
Although the existing structure of
the Commission provides for five Commissioners the position of
Disability Discrimination Commissioner and Race Discrimination
Commissioner have been vacant for some time. There has been only
one permanent Disability Discrimination Commissioner whose term
expired in December 1997. The term of the last Race Discrimination
Commissioner expired in September 1999. The
Bill is drafted to
accommodate the existing Commissioners, it is unclear what the
position would be if more than three Commissioners were currently
in office.
The Australian Human Rights Commission
Bill is controversial legislation that has attracted a considerable
amount of public debate. As note above, the Senate Legal and
Constitutional Legislation Committee inquired into and reported on
the Bill in May 2003. The Report of the
Committee brings together the most up to date compilation of views
of a wide cross section of Aboriginal and non-Aboriginal
organisations, academics, church based groups, individuals, civil
liberties organisations and statutory authorities on the
Bill. Over 200 submissions were made to the
Committee, a significantly greater number than were submitted to
the Inquiry on the 1998/1999 version of the
Bill.
The majority report of the Senate
Committee recommended that the Bill be
passed subject to two substantive changes. First, that areas of
responsibility be designated for each Commissioner in line with the
original proposal in the 1998/1999 Bill and that the Commission not
be required to obtain the consent of the Attorney-General before
seeking leave to intervene in court proceedings (see below). By
contrast a dissenting report by ALP, Democrat and Green Senators
opposes the Bill outright and made a
series of alternative proposals that would strengthen the capacity
of the Commission to perform its existing functions.
These concluding comments are not
exhaustive of all the issued raised by the
Bill. Rather it highlights four of the key
issues considered by the Senate Committee restructuring the
Commission; the requirement to obtain the Attorney-General s
consent before seeking leave to intervene in Court proceedings; the
centralisation of the inquiry and complaints function and the power
to appoint part-time Complaints Commissioners; and the abolition of
the power to recommend monetary compensation. Finally, it briefly
touches on other jurisdictional issues that have been left
untouched by the Bill and were outside
the scope of the Senate Committee s inquiry.
The proposal to abolish the five
portfolio specific Commissioner positions and replace them with
three generic Human Rights Commissioners has attracted significant
criticism. The 1998/1999 version of the Bill
proposed that the Commission comprise the President and three
Deputy Presidents, with combined but specified areas of
responsibility in:
racial discrimination and social
justice
sex discrimination and equal
opportunity, and
human rights and disability
discrimination.
In his Second Reading Speech for the
2003 Bill, the Attorney-General said the
proposed reforms:
take into account the possibility of new
areas of Commission responsibility (such as age discrimination),
the fact that human rights issues increasingly crossover the
portfolio specific boundaries of the existing structure (such as
issues relating to women with disabilities) and the social and
economic environment that faces all levels of government and
business.(5)
The main concerns with the abolition of
specialised Commissioners have centred on the:
loss of expertise which specialised
Commissioners bring to their position
loss of a publicly identifiable advocate
for particular groups vulnerable to discrimination and human rights
abuse, and
the undermining of the advocacy and
educational role of the Commission.
Particular concern has been expressed in
relation to the loss of a specialised Aboriginal and Torres Strait
Islander Justice Commissioner. A number of Aboriginal
organisations, legal and church based groups, academics, and
non-indigenous civil liberties organisations strongly advocated the
retention of this position. Amongst those who made submissions was
the former Royal Commissioner into Aboriginal Deaths in Custody and
former Deputy President of the Native Title Tribunal, the Hon Hal
Wooten AC QC. He argued that the complex nature of the issues
facing indigenous Australia meant it is
crucial to have an independent, specialised and informed
Commissioner able to keep issue of indigenous human rights before
the Government.(6)
Recommendation 1 (a) of the majority
report favours a reduction in the number of Commissioners from five
to three but proposed that the Human Rights Commissioners have
designated areas of responsibility such as:
human rights and disabilities
sex discrimination, and
race discrimination and Aboriginal and Torres Strait Islander
social justice.
The Senate Committee also recommended
that one of the Commissioners be required to have significant
experience in the community life of Aboriginal persons or Torres
Strait Islanders (Rec 1 (b)). The ALP members supported
Recommendation 1 (b) as this is consistent with their view
expressed in the dissenting report.
By contrast the dissenting report
opposed the restructuring of the Commission as an entrenchment of
the existing status quo. ALP, Green and Democrat members called for
restoration of funds to enable the appointment of a Disability and
Race Discrimination Commissioner to the two existing but vacant
positions. They pointed to the need to maintain the existing 5
positions in order to ensure the capacity of the Commission to deal
with issues concerning children, age discrimination, the mentally
ill and other relevant groups.(7)
Under paragraph 11(1)(o) of the HREOCA
the Commission has a discretion to seek leave to intervene in court
proceedings that involve human rights issues, where the Commission
considers it appropriate to do so. Paragraph 31(j) provides for a
similar function in relation to equal opportunity and
discrimination functions under the RDA, SDA and the DDA in relation
to issues of race, sex, marital status, pregnancy and disability
discrimination.
Almost all submissions to the Committee
opposed the proposed requirement that the Commission seek and
obtain the consent of the Attorney-General before seeking leave to
intervene in proceedings. The Australian Council for Human Rights
Agencies (ACHRA), a new human rights group formed in February 2003
by State and Territory Equal Opportunity and Anti-Discrimination
Agencies publicly condemned the proposal as a degrading of the
independence of the Commission.(8) The ACHRA is made up
of Commissioners and Presidents of the agencies.
The Explanatory Memorandum explains the
rationale for the proposal as ensuring that the intervention power
is only exercised after the broader interests of the community have
been taken into account .(9) In his Second Reading
Speech the Attorney-General said that:
This requirement is not intended to prevent
court submissions that are contrary to the government s views, but
rather to prevent duplication and the waste of resources and to
ensure that court submissions accord with the interests of the
community as a whole.
The Government s position has been
criticised as failing to indicate what those broader interests are
and how those interests might be adversely affected by the
Commission exercising its intervention powers that are designed to
ensure the Courts are able to give proper consideration to human
rights issues. A number of witnesses to the Senate Committee argued
that there is no evidence that the Commission s intervention power
has been used excessively or frivolously. One Senior Counsel
informed the Committee that none of the Commission s interventions
had attracted criticism from judges for lacking relevance or
expertise.(10)
Costs and Appropriateness of
Interventions
In relation to costs, the President of
HREOC, Professor Alice
Tay, gave evidence that the Commission has
spent:
$200,000 (or 0.5% of its budget) on 18
interventions over the past three financial years, averaging
$11,000 for each case. Early preparatory work is done in-house by
instructing solicitors and senior counsel have worked either pro
bono or on reduced rates.(11)
The President also informed the
Committee that since the Commission was established in 1986, it had
been granted permission to intervene in all 35 cases in which leave
to intervene had been sought. In evidence before the Committee the
Attorney-General s Department told the Committee that the
Attorney-General was concerned that the Commission had used its
intervention power inappropriately and unnecessarily. The only case
in which the Attorney-General has publicly criticised HREOC s
intervention as inappropriate is the family law case of B &
B, a matter in which the Attorney-General also intervened with
opposing argument.(12)
Professor Tay
gave evidence that in 16 of 18 cases in which both the
Commission and the Commonwealth had been parties, the Commonwealth
s arguments were contrary to the Commission s. Details of those
cases are set out in Appendix 6 to the Committee s report. These
cases have covered a broad range of significant human rights issues
such as, the right of access to lawyers by asylum seekers in
detention, scope of the races power under section 51 (xxvi) of the
Constitution, definition of native title rights, criminal
deportation of a person in immigration detention, the detention of
persons aboard the MV Tampa, the right of a person with a
transsexual history to marry, the privative clause in the
Migration Act 1958 and death of asylum seekers off Ashmore
Reef.
Accountability Unfettered Power to
Withhold Consent
As noted above, the
Bill sets out a range of matters in proposed new
subsection 11(5)(13) as an indication of the types of
matters the Attorney-General may wish to consider when
deciding whether or not to give his approval. However, the
discretion is in fact unfettered by any limitation and consequently
it confers an unlimited executive power upon the Attorney General
to decide whether or not to give consent. This leaves open the
possibility for the Attorney-General to be influenced by matters
not specified in the Bill but is drafted
so broadly that it effectively avoids the possibility of judicial
review.
In evidence before the Committee the
Attorney-General s Department acknowledged that insufficient
accountability had been built into the
Bill. In particular, the
Bill (a) did not require the Attorney-General to
make public what matters would be taken into account when making
the decision and (b) the legislation does not give any right of
review of the decision.(14)
While in theory, judicial review of the
decision is available under the Administrative Decision
(Judicial Review) Act 1977 (Clth), the broad ranging
nature of the discretion means the grounds of available review
under the Act are unlikely to yield fruit. Consequently, there
would be little utility in the Commission seeking to overcome
instances of unwarranted interference in the exercise of the
Commission s functions through the courts.
Constitutional Issues- Interference
in Judicial Process
A number of witnesses expressed the view
that conferring such a power on the Attorney-General is an
inappropriate interference with the judicial
process.(15) They pointed to the conflict of interest in
conferring the power to decide a question of intervention on a
member of the government and of a political party who may be unable
to exercise an independent judgment.(16) It was also
argued that such a decision making power comes close to
interference in the judicial process.(17)
Professor George Williams
and Ms Ronnit
Redman said that:
The Bill s
interference with the judicial process may become acute (and
possibly raise constitutional issues) when the Commonwealth or the
Attorney-General is a party to the litigation. The power to veto
the participation of an intervening third party may enable the
Attorney-General to influence the outcome of the litigation. This
might arise where the veto is used to prevent the Commission from
intervening in cases raising the constitutionality of legislation
that would infringe human rights (for example in Kartinyeri v
Commonwealth (1997) 190 CLR 1).(18)
Conflict with the
Paris Principles
The Paris Principles is an
international instrument which sets out an agreed set of minimum
standards for national human rights institutions.(19)
The Paris Principles is the basic instrument relied on by
Australia in promoting the establishment of
independent human rights institutions in the Asia Pacific Region.
Central to the Paris Principles is the requirement for national
governments to guarantee institutional independence to enable the
organisation to freely pursue its mandate to promote and protect
human rights. This includes the provision of advisory opinions to
bodies competent to decide questions of human rights
law.(20)
Recommendation 2 of the majority report
proposed this aspect of the Bill not be
agreed to and that other informal arrangements to improve
communication between the Commission and the Attorney-General be
considered to alleviate any potential difficulties that an
intervention may raise. It was also recommended that the
Bill might be amended to require the Commission
to provide details on all interventions in its annual
report.
The Bill
completes the centralisation of complaints handling function
of the Commission under the authority of the President. It achieves
this by repealing subsection 19(2A) and (2B) which allow the
President to delegate to the Human Rights Commissioner the power to
deal with complaints in relation to alleged breaches of human
rights(21) and discrimination in
employment.(22) New subsection 19(2A) prevents the
President from delegating any power in relation to complaints to
any other Commissioners, including the Human Rights
Commissioner.
However, as noted above, the
Bill enables the Attorney-General to appoint
legally qualified persons on a part-time basis for up to 5 years to
deal exclusively with complaints. In his Second Reading Speech the
Attorney-General said that:
In order to provide a further option for
managing complaint-handling workloads. I will be able to appoint
legally qualified persons as Complaints Commissioners on a
part-time basis to assist the President with these functions. Work
will be allocated to a Complaints Commissioner by the
President.
In its submission to the Senate
Committee, the Commission gave evidence that the amendment was
unnecessary as there were no undue delays in processing complaints.
The Commission also pointed out that the President already has, and
retains under this Bill, the power to
delegate her powers to members of the staff of the Commission and,
if necessary, to a person outside the Commission. The President
indicated that this includes a delegation to a person such as a
retired judge or legally qualified person if that was considered
necessary.(23)
Lack of statutory
independence
Importantly, a Complaints Commissioner
would not be a statutory member of the Commission. Rather,
the Bill enables the Attorney-General to
determine the terms and conditions of appointment and to terminate
the appointment at any time. While this will provide the Government
with flexibility to adjust appointments to work flow, the proposal
is also open to criticism as is fails to provide statutory
independence to safeguard appointees from political interference or
pressure to achieve certain results. Vesting control of appointment
of the Complaints Commissioners in the hands of the
Attorney-General also means that, while the President is required
to delegate the inquiry and complaints handling functions to them,
the President has little control over whether the person is
suitably qualified to perform the task or to manage performance
such as the meetings of deadlines and consistent decisions
making.(24)
A number of submissions objected to this
aspect of the Bill. The majority of the
Committee did not oppose the appointment of Complaints
Commissioners. In the dissenting report the ALP, Democrat and Green
Senators opposed the further limitation on the President s power to
delegate her inquiry power. The minority report proposed that the
President be able to delegate inquiry and complaints handling to
any other member of the Commission. This approach supports the
submission put by the Commission to the Senate
Committee.
Where the Commission finds that an act
or practice constitutes discrimination it has the power under
paragraph 29(2)(c) to make recommendations for action, including
the payment of compensation, to remedy a loss or damage suffered as
a result of the discrimination. As noted above, the
Bill repeals paragraph 29(2)(c) and replaces it
with provision that allows the Commission to make recommendations
for remedial action but prohibits the recommending of monetary
compensation.
In evidence to the Senate Committee the
Attorney-General s Department explained the existing power as an
anomaly and said it was inappropriate for an administrative body
that could not enforce the recommendation to have such a
power.(25) In reply the Commission argued that, while
such recommendations are unenforceable, they formed an important
part of the Commission ability to conciliate complaints and in fact
respondents have paid the compensation in 27% of cases. The
Commission also informed the Senate Committee that the Commonwealth
was the respondent in 60% of matters where the Commission had
recommended financial compensation in its reports to the
Attorney-General but no compensation was paid.(26) The
Commission also referred to comparable powers to make
non-enforceable recommendations for compensation by other
investigative bodies such as the Commonwealth Ombudsman.
The task of the Senate Committee was to
inquire into the provisions of the proposed
Bill. Consequently, there was little scope to
examine other issues relevant to the functioning of the Commission.
One issue which has yet to be analysed in detail is whether the
Commission has a sufficiently wide jurisdiction to inquire into
complaints concerning the broad range of human rights issues that
arise for particular segments of the Australian
community.
For example, while the Commission can
deal with the allegations of arbitrary detention and inhumane
treatment of asylum seekers under the International Covenant on
Civil and Political Rights (ICCPR), it has no express jurisdiction
to deal comprehensively with the civil, political, economic, social
and cultural rights of refugees protected by the 1951 Convention
Relating to the Status of Refugees (CSR). Similarly, the Commission
has a limited jurisdiction to deal with economic, social or
cultural rights of the wider community and yet the Commission is
under a statutory duty to ensure that it discharges its function
with regard for the indivisibility of human rights.(27)
Consequently, there is an outstanding issue as to whether the 1951
Convention Relating to the Status of Refugees and the International
Covenant on Economic, Social or Cultural Rights (ICESCR) should be
declared instruments under the HREOCA and scheduled to the Act. The
ICCPR(28) and ICESCR, together with the UN Declaration
on Human Rights, make up the International Bill of Rights which
sits at the apex of the system of international human rights
law.
Similarly, the Commission has limited
jurisdiction in relation to prisoners who are primarily the
responsibility of State or Territory Governments. This is a major
shortcoming in Australia s national human
rights institution that has failed to attract much attention. In
the absence of Bills of Rights at the State and Territory level
prisoners depend on a patchwork of tort and administrative law to
ensure accountability for standards of treatment during
incarceration. Under the Australian Constitution the management of
prisons is a responsibility of the States. It is arguable that the
Commission has jurisdiction in relation to Federal prisoners held
in State prisons on behalf of the Commonwealth. And, under
international law, it is the responsibility of the Commonwealth to
ensure that State and Territory Governments act consistently
with Australia s treaty
obligations.
-
Following a recommendation by the Selection of Bills Committee, the
Senate referred the 1998 Bill to the Senate Legal and
Constitutional Legislation Committee on 14 May 1998, for inquiry
and report by 10 August 1998. An interim report was presented on 10
August 1998, however before the final report of the Committee could
be tabled, the 1998 Federal election was called and the committee
was unable to continue its consideration of the 1998 Bill. After
the election, the provisions of the 1998 Bill were referred to the
re-constituted Committee on 12 November 1998, for report by 1
December 1998. The Committee's report was tabled on 17 February
1999.
- A copy of the Senate Legal and Constitutional
Committee report may be obtained through
http://www.aph.gov.au/senate/committee/legcon-human2/report/b01.htm.
- Available at:
http://www.aph.gov.au/library/pubs/bd/1998-99/99bd146.htm
.
- Human Rights and Equal Opportunity
Commission Act 1986, (HREOCA), Race Discrimination Act
1975 (RDA), Sex Discrimination Act 1984 (SDA),
Disability Discrimination Act 1992 (DDA).
- The Commission will retain the right to
determine its administrative support structure, including the
retention of its specialist policy units.
- Submission 72, p. 3.
- Provisions of the Australian Human Rights
Commission Legislation Bill 2003, Legal and Constitutional
Legislation Committee, Department of the Senate, Clth of Australia,
May 2003, p. 61.
- ACHRA condemns government move to strip
powers from Human Rights and Equal Opportunity Commission,
http://www.eoc.sa.gov.au/access/ACHRA.html,
26 May 2003.
- Explanatory Memorandum, p. 9.
- See for example the evidence of Mr Bret
Walker SC, President of the NSW Bar Association. Committee Hansard,
29 April 2003 p. 15.
- Committee Hansard, 29 April 2003, p. 3.
- B & B: Family Law Reform Act
1995 (1997) FLC 92. In B & B case HREOC
intervened with a submission supporting the right of a wife to
relocate with her two children. The HREOC submission argued that
the Court should have regard to the constitutional rights of adults
to freedom of movement and the Convention on the Rights of the
Child. The Attorney-General also intervened in those proceedings
arguing against the use by the Court of any international human
rights treaties and in particular the Convention on the Rights of
the Child in the interpretation of the Family Law Reform
Act.
- See also proposed subsection 31(2) and
equivalent provisions of the DDA, SDA, and RDA.
- Committee Hasard, 14 May 2003, pp 72 73.
- Professor George Williams and Ms Ronnit
Redman, Gilbert and Tobin Centre of Public Law, University New
South Wales, Submission 9, p. 2.
- Law Institute of Victoria, Submission 158A,
p. 2.
- Liberty Victoria, Submission 112, p. 2.
- Submission 9, p. 2.
- The Paris Principles were adopted by the
United Nations Commission on Human Rights in May 1992 (Resolution
1992/54) and by the United National General Assembly in resolution
A/RES/48/134 on 20 December 1993.
- A copy of the Paris Principles appears as
Appendix 4 to the Committee Report
- Part II Division 2 section 11 (f) provides
that it is a function of the Commission to inquire into any act or
practice that may be inconsistent with or contrary to any human
right, to conciliate the complaint and achieve a settlement and
where conciliation is not appropriate or not achieved to make a
report to the Minister on the matter. Human rights is defined by
reference to the international instruments declared under s47 of
the HREOCA and which appear in schedules to the Act. To date the
declared instruments are: Convention Concerning Discrimination in
Respect of Employment and Occupation; International Covenant on
Civil and Political Rights; Declaration on the Rights of the Child;
Declaration on the Rights of Mentally Retarded Persons; Declaration
on the Rights of Disabled Persons.
- Part II Division 4 section 31 of HREOCA sets
out the Commission s functions in relation to equal opportunity in
employment.
- Submission 103, p. 18.
- See HREOC Submission 103 p. 18.
- Committee Hansard, 14 May 2003, p. 67.
- Submission 103, p 16.
- See section 10A of the HREOCA for the duties
of the Commission. The concept of indivisibility in international
human rights law is a reference to the interdependence of civil,
political, cultural, social and economic rights. Indivisibility is
shorthand for the idea that the full realisation of civil and
political rights depends upon the effective protection of economic,
social and cultural rights and vica versa. The UN
Committee on Economic, Social and Cultural Rights in its Concluding
Observations on Australia s third periodic report under the treaty
recommended that Australia incorporate the ICESCR into domestic
law. Declaring the ICESCR as an international instrument for the
purpose of the HREOCA would be a small step in that direction
(E/C.12/1/Add.50, 1 September 2000, para 24.)
- The First Optional Protocol to the ICCPR
which provides an mechanism for individual complaints to the UN
Human Rights Committee is included in the instruments that comprise
the International Bill of Rights.
Jane Hearn
25 June 2003
Bills Digest Service
Information and Research Services
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