Bills Digest No. 227 1997-98
Human Rights Legislation Amendment
Bill (No. 2) 1998
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
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.
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.
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:
In an era ... in which governments exercise wide powers and corporations
and large institutions greatly influence the lives of individuals, it
is important to have an agency that is active in the protection and promotion
of rights of the individual(1).
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.
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.
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:
making people aware of their responsibilities to protect and promote human
rights is as important as protecting those who are subject to discrimination.(24)
The change in name has attracted limited but sceptical
comment. Considering the concept of responsibilities an Age editorial
commented that:
to those familiar with the government's tense relationship with the Commission
... the new emphasis sounds like an attempt to pull the commission's teeth
... Education in human rights is important, but the Commission educates
chiefly by example - specifically by vigorous prosecution of rights violations.
Its pursuit of such violations has often irked the present Government.(25)
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:
no more than a pathetic ruse to cover the fact that the Government had
decided not to re-appoint the Disability Discrimination Commissioner and
the Aboriginal and Torres Strait Islander Social Justice Commissioner.(27)
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:
A world dependent upon rights alone would be an unhappy and discordant
one. Rights are something that people demand, that we all too often expect
others to provide us ... None of this is to suggest that the Universal
Declaration of Human Rights ... should in any way be diminished. The Inter-Action
Council, however, does quite firmly believe that the constant demand for
rights without recognising the need for responsibilities at every level
will not produce the best result.(29)
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:
incessant competition among the commissioners for the public ear and the
public purse ... specialist commissioners who go about Balkanising the
human rights agenda must be replaced by generalists.(33)
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:
amount to a sidelining of the commission by a Government that does not
want watchdog agencies to frustrate its agenda. The fact is that commissioners
have regularly crossed swords with the government on key areas of policy...
It is obvious why the Government might be irked at being constantly reminded
of things that it should not do but that is what a body such as the Human
Rights and Equal Opportunity Commission is for. ... When ... governments
act to trim the commission's powers ... it is the quality of Australia's
democracy that suffers.(36)
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.
- Senate, Debates, vol. 82, 25 September 1979.
- Senate, Debates, vol. 105, 12 September 1984.
- (1995) EOC 2 - 662.
- Senate Legal and Constitutional Legislation Committee, Human Rights
Legislation Amendment Bill 1996, June 1997.
- 1997-1998 Portfolio Budget Statement of the Attorney-General's
Department, 116.
- Attorney-General (Daryl Williams), 'Upholding Human Rights', Press
release no. 269, 15 May 1997.
- ibid.
- ibid.
- Human Rights and Equal Opportunity Commission, 'Human Rights Commission
Budget Cuts', Press release, 16 May 1997.
- ibid.
- The Age, 12/2/1997.
- The Sydney Morning Herald, 16/9/1997.
- Australian Women's Non-Government Organisations, 'Don't Shoot the
Sex Discrimination Commissioner!!', Press release, 28/7/1997.
- The Sydney Morning Herald, 16/9/1997.
- ibid.
- Committee on the Elimination of Discrimination Against Women, Consideration
of Third Periodic Report of Australia, 22 July 1997.
- 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
- The Australian Financial Review, 31/7/1997.
- The Australian, 28/7/1997.
- The Australian Financial Review, 20/9/1997.
- The Sydney Morning Herald, 20/9/1997.
- Attorney-General (Daryl Williams), 'Human Rights and Responsibilities
Commission', Press release no. 341, 23/9/1997.
- House of Representatives, Official Hansard, No. 5, 1998, 8
April 1998.
- Attorney-General (Daryl Williams), 'Human Rights and Responsibilities
Commission', Press release no. 404, 8 April 1998.
- The Age, 29/9/1997.
- The Age, 29/9/1997.
- Senator the Hon Nick Bolkus, 'The New Human Rights and Responsibilities
Commission is a Sham', Press release no. 42/97, 23/9/1997.
- 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.
- The Australian, 12/9/1997.
- The Age, 24/9/1997.
- The Canberra Times, 25/9/1997.
- The Age, 24/9/1997.
- The Australian, 31/7/1997.
- Attorney-General (Daryl Williams), 'Human Rights and Responsibilities
Commission', Press release no. 404, 8/4 1998.
- The Sydney Morning Herald, 24/9/1997.
- The Age, 31/7/1997.
- Kartinyeri v The Commonwealth (1998) High Court of Australia
22 .
- Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh
(1995) 128 ALR 353.
- B and B: Family Law Act 1995 (1998) 22 Fam LR 453.
- The Age, 12/5/1998.
Krysti Guest
10 June 1998
Bills Digest Service
Information and Research Services
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