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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