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Chapter 3 - Key Issues
3.1
The Committee received submissions and evidence both in
support and in opposition to the Bill. Some submissions
agreed with the objective of the Bill but were
not satisfied that amending the Civil
Aviation Act 1988 was the most effective and efficient method of achieving
it.
3.2
This chapter discusses the issues raised in submissions
and evidence given during the public hearing in relation to the provisions of
the Bill. Issues raised include:
-
Appropriateness of the Bill;
-
Removal of right to make a complaint; and
Key issues
Terminology
3.3
Several submissions[16] raised the
issue that certain words used in the provisions of the Bill
were not sufficiently clear for the purposes of determining what was unlawful
discrimination.
3.4
Proposed subsections 96(6A) and 96(6B) of the Bill
provide that regulations under the Civil
Aviation Act 1988 may contain provisions regarding medical standards that
are inconsistent with the SDA or provisions that are inconsistent with the DDA,
if the inconsistency is "necessary for the safety of air navigation".
The use of the term "necessary" in this context was questioned by
HREOC, People with Disabilities and by the Griffith
Law School.[17]
3.5
HREOC commented that, 'What is meant by
"necessary" in this context is open to conjecture'[18], and HREOC
posed the question of what a court might ultimately find to be "necessary".[19]
3.6
HREOC expanded on this during its evidence at the
public hearing, saying that one of its concerns is 'that it is not clear by
what mechanism necessity is to be appropriately assessed.'[20] Mr
David Mason
from HREOC added that:
Given that the aim [of the Bill] is the pursuit of certainty, if
it is still possible for someone to be challenging whether the particular
regulatory measure was necessary, there is no real ascertainable standard that
we can see for that exercise. And we would prefer, to see more upfront
processes. [21]
3.7
The Griffith Law
School stated that both the words 'necessary' and 'safety', in the above
context, were not sufficiently defined, adding that they were 'contestable
concepts' that could 'give rise to uncertainty and litigation'[22] if more
specific terms were not substituted.
3.8
People with Disability was also concerned about the
term 'necessary for the safety of air navigation', stating that it:
may permit unnecessary
and unreasonable discrimination well beyond the specific discriminatory
measure(s) that may genuinely be required to assure aviation safety. Whether
this will ultimately be the case depends on the specific meaning given to the
terms in the regulations to be made.[23]
3.9
A submission by the Human Rights Committee within the
Law Society of New South Wales considered that:
given the paramount importance of making
legislation as consistent with anti-discrimination legislation as possible, the
term "necessary for the safety of air navigation" ought to be read as
narrowly as possible.'[24]
3.10 Although
Qantas did not discuss the words 'necessary' or 'safety' they did question the
use of the word 'navigation' in the context of 'air navigation safety'[25].
3.11 In
its submission, Qantas discussed the problems they have encountered in defence
of passenger complaints of discrimination. It believes that the word
'navigation' should be changed in the Bill to
'transport', which would be inclusive of issues relating to the carriage of
passengers and of aircraft design. It pointed out that the word 'navigation'
would provide 'opportunity for further argument' as to whether the 'issues were
relevant only to the navigation of the aircraft'[26]. Qantas
proposed that changing to the word 'transport' would alleviate possible
additional court time and costs that would result from trying to determine the
meaning of 'navigation' safety.
3.12 Commenting
on this during the hearing, Ms Alison
McKenzie of Qantas said that:
To me, air navigation is what occurs in the cockpit of an
aircraft and arguably this bill does not extend that far. If there is a
better way of phrasing it, making it clearer that it relates to flight or to some
other way, we [Qantas] would support that. It could be narrowed somehow to
apply to airlines, but I think air navigation is quite specific from a
regulatory perspective. [27]
3.13 However,
in the hearing, DoTARS explained that the term 'navigation' is used throughout
the Civil Aviation Act 1988 and that
'[i]t has a long history and certainly is one we would prefer to stick with.'[28] The
department representatives went on the explain that:
the term 'safety of air
navigation' is also used throughout the Civil Aviation Act and regulations, so
to move to using 'air transport' would be inconsistent with the terminology
that has flowed down from the [Chicago] convention into the Civil Aviation Act
as well.[29]
Committee View
3.14
The Committee is satisfied that the terminology within
the Bill is sufficiently clear and that the use of the term 'navigation' is
consistent with the Bill's objective of allowing Australia to comply with its
international obligations to meet safety standards and practices set by the
ICAO.
Retrospectivity
3.15 The
Griffith Law
School criticised the retrospective
nature of the Bill and argued against granting
the Executive the power to 'exempt the operation of human rights legislation
without further scrutiny by the Parliament.'[30]
3.16
The Victorian Bar was strongly opposed to the
retrospective nature of the Bill, stating that 'it
is objectionable in principle'[31]. Its
submission was restricted to such an in-principle objection and they requested
that Schedule 1, Part 2, Item 3 (which contains the retrospective provisions of
the Bill) should be deleted from the Bill.
3.17
Qantas was the sole submission that openly supported
the retrospective provisions of the Bill,
pointing out the existence of current conflicts or inconsistencies between the Civil Aviation Safety Regulations 1998,
and anti-discrimination legislation.[32] They
commented that, 'to the extent that such regulations are invalid, [due to the
conflict] Qantas supports the retrospective validation of such regulations.'[33]
3.18
The Committee asked DoTaRS to explain why the
retrospective effect of the Bill was necessary.
In a supplementary submission to the Committee it explained:
The effect of the retrospective provisions would be to ensure
that the existing regulations operate and are valid in line with previous understandings.
No-one will find themselves in a worse position than they were in under the law
as previously administered and understood.
Failure to make the rights, duties and obligations of persons
the same whether an alleged act of discrimination occurred before or after the
commencement of the Bill would leave the regulations which are to be validated by
the Bill vulnerable to legal challenge. While the regulations would, under
clause 4 of Part 2 of the schedule to the Bill,
be validated from the date of commencement of the Bill,
any prior invalidity would lead to uncertainty about the lawfulness of actions
taken by persons in reliance upon those regulations prior to commencement.
Thus, the decisions of medical examiners or airlines taken in good faith in reliance
upon the validity of the air safety regulations prior to commencement would be
thrown into doubt. Much of the utility of the Bill
would thereby be defeated.[34]
3.19
DoTaRS were further asked to detail how many people's
rights may be affected by such retrospective validation. It explained:
Neither the Department, CASA nor the Attorney-General's
Department are aware of any people whose ability to claim invalidity of the
relevant air safety regulations would be affected.[35]
Committee View
3.20
Whilst legislation that operates retrospectively is
always a matter of concern, the Committee appreciates that as the exemption
process granted by HREOC is unable to operate retrospectively, in the interest
of certainty for parties seeking to comply with air safety regulations (that
may conflict with anti-discrimination laws), there is a need for such
operation.
Appropriateness of Bill
3.21
Several submissions, including some that supported the
objective of the Bill, did not believe that the Bill
was the most appropriate means to meet that objective.[36]
3.22
HREOC commented that the clear intention of the Bill
is to ensure that 'civil aviation regulations should deal conclusively with
relevant rights and responsibilities rather than be open to question through
the SDA and DDA.'[37]
However it went on to say that:
There may remain some doubt whether these amendments and
making of regulations pursuant to them would be sufficient to remove the
possibility that persons acting pursuant to such regulations could nonetheless
remain subject to liability under the SDA or DDA.[38]
3.23
A representative from HREOC expanded on this during his
evidence at the public hearing:
we are not convinced
that this bill by itself achieves its stated objectives, there is a need for
clarification of the effect of regulations all this bill does is say,
'Okay, the regulations are valid for the purposes of the civil aviation
regime.'[39]
3.24
He went on to cast doubt as to the effectiveness of the
retrospective nature of the regulations.
we would question
whether this bill actually validates past actions It may well succeed in
validating the regulations for the purpose of their existence under the civil
aviation regime. We do not think that it necessarily validates discriminatory
actions in terms of immunising them from potential liability under the
anti-discrimination regime.[40]
3.25
He suggested that, consequently, it could be argued
that persons acting pursuant to any new regulations may still be answerable to
a discrimination claim and that this would therefore defeat the purpose of the Bill.[41]
3.26
In its submission, HREOC added that they were not
arguing against proceeding with the Bill, but it
was suggesting that:
further consideration of measures to ensure an appropriate
relationship between anti-discrimination and civil aviation safety laws may be
required.[42]
3.27
HREOC's submission noted that they had granted an
exemption in November 2002 to persons acting in accordance with Civil Aviation Regulations
regarding medical fitness, and that these exemptions were granted for the same
reasons as this current Bill:
to ensure that the SDA and DDA operate with due regard for the
necessity of ensuring aviation safety.[43]
3.28
The Griffith Law
School was strongly opposed to the Bill.
One of its concerns was the fact that:
it does not attempt to isolate the particular troubling
aviation safety standards and make an actual assessment of whether they
conflict with anti-discrimination statutes.[44]
3.29
In its submission, People with Disability agreed with
this sentiment, stating:
There is very little indication in the Bill
or its supporting materials about specific 'mischief' sought to be remedied.[45]
Regulation-making power not the solution
3.30
The Griffith Law
School submission commented that
rather than adopt 'such a broad-brushed legislative approach'[46], the change
should be effected through an amendment to the anti-discrimination legislation,
rather than 'through the "back door" of regulations.'[47] It claimed
that 'the question of whether there was actual inconsistency [with
anti-discrimination legislation] ought to have been tested in court before a
legislative approach is adopted.'[48]
3.31
In giving evidence at the public hearing, Professor
Rosemary Hunter
from Griffith University
Law School
agreed with HROEC's doubts that the making of regulations would remove any uncertainty
that might exist, stating that:
regulations could also
be equally open to challenge words that are used in the proposed legislation
allowing regulations are entirely contestable concepts and therefore would
be equally open to litigation and challenge as would the current situation.[49]
3.32
Although it addressed only the DDA, the Law Institute
Victoria (LIV) repeatedly stated that granting regulation-making power was an
inappropriate solution:
This submission does not support the view that there is a
necessity to provide the Governor-General with a blanket authority to
effectively legislate exemptions from the DDA.[50]
the DDA has adequate provisions that accommodate the interests
of the air navigation industry.[51]
there is no necessity to empower the Governor-General to enact
regulations as there is proper scope for exclusion in the DDA[52].
3.33
Professor Hunter
also claimed that the Bill takes an
unnecessarily broad approach to resolving limited scenarios of potential
conflict. Her colleague, Ms Megan
Dixon, agreed strongly on this point,
stating that:
As a matter of public policy, blanket exemptions are a
dangerous mechanism for addressing the balancing exercise between people's
rights and the safety concerns of industry. An argument that it is simply
more efficient to enact a blanket safety exemption would defeat the purpose
of such protections [the anti-discrimination legislations] ...[53]
3.34
Professor Hunter
added that :
the conflict needs to
be worked out in a context where both sets of concerns are given equal weight
and equal consideration.[54]
3.35
HREOC concluded in its submission that a further
exemption application, or the use of current provisions under the existing
legislation, could be an alternative to the granting of regulation-making powers.[55]
3.36
The National Association of Community Legal Centres,
Disability Rights Network concurred, saying it believed the regulation-making
provisions were 'heavy-handed and inappropriate'. It continued:
If a regulation making power that solely rests on the
governor-general is allowed, it poses a danger that fundamental rights maybe
sidestepped without recourse.[56]
3.37
It stated their preference for the granting of
additional exemptions:
With the benefit of consultation, any decision to grant an
exemption has a better chance of accommodating the balance between air safety
and the rights of vulnerable individuals compared with any regulation intended
to achieve the same exemption. A proposed blanket authority of regulation is
clearly unnecessary when the needs of civil aviation stakeholders are already
accommodated by HREOC powers of exemption.[57]
3.38
In a supplementary submission to the Committee, DoTARS
addressed the issue of why it was preferable to amend the Civil Aviation Act 1988, as opposed to seeking extended or wider
exemptions from HREOC:
The decision to amend the Civil Aviation Act 1988 to ensure the
validity of all air safety regulations which may be inconsistent with the SDA
and the DDA, as opposed to seeking extended or wider exemptions from HREOC
under those Acts, was a decision made in consultation with HREOC and was
recommended by AGD.
The Attorney-General's Department have advised the Department
that there is no capacity under either the SDA or the DDA to seek permanent
exemption, as the provisions of these Acts allow exemptions to be made for a
maximum of five years. The policy underlying exemptions is that they enable the
exempt organisation to bring itself into compliance with the relevant
legislation over a period of time, or to maintain the status quo while the
legislation is amended. Exemptions do not operate to validate otherwise
inconsistent legislation.[58]
DDA already has sufficient mechanisms
3.39
LIV cites several examples of sections within the DDA
that provide for lawful discrimination[59]. They also referred
to case law, and gave the example of McLean
vs Airlines of Tasmania, where it was determined that it was lawful
discrimination, under the DDA, to not allow the plaintiff, who suffered from
cerebral palsy, to travel unaccompanied on an airline[60].
3.40
Mr Mason
from HREOC commented that:
On the need to amend the DDA itself, we would say there are a
number of mechanisms already provided within the act without the need to go to
parliament for amendments to the DDA by the provision for temporary
exemptions and the prescribed laws provision.[61]
3.41
Professor Hunter
gave evidence along similar lines, saying that:
We actually argue that there is unlikely to be any inconsistency
between the Disability Discrimination Act and the civil aviation regulations
or safety provisions, because there are already exemptions within the
disability discrimination legislation that would enable airlines to
discriminate lawfully in circumstances where that might be necessary.[62]
3.42
In its
submission, People with Disability concurred with Professor
Hunter's opinion, also citing the following
sections of the DDA that they believe already provide adequate mechanisms: subsections
47(2) and (5), section 57, subsection 15(4), and section 11.[63]
3.43
LIV also commented that 'the needs of civil aviation
stakeholders are already accommodated by the availability of a HREOC exemption'.[64] LIV stated its
preference for an exemption application due to the fact that this would involve
a consultation process, which 'ensures that a better balance is achieved between
air safety and the rights of vulnerable individuals'. As an exemption is
capable of being tailored, it 'offers the distinct advantage of restricted
scope.'[65]
3.44
The National Association of Community Legal Centres'
Disability Rights Network contained very similar wording to the LIV submission,
reiterating LIV's concerns.[66]
3.45
The WA Equal Opportunity Commission, although not as
strong in its criticism for the proposed regulation-making powers, stated its
preference was that:
such significant changes to the law should be scrutinised by
Parliament directly, by way of proposed amendments to the DDA and the SDA
respectively.[67]
Does the Bill go far enough?
3.46
Qantas, although strongly in support of the Bill,
believed that the Bill did not go far enough in
effecting the changes required to remove the inconsistencies and ensuring air
navigation safety. Qantas believed that the Bill
'only takes the first step'. It submitted that the second step would be:
to ensure that direct compliance with the Civil Aviation
Legislation was an exemption to the general provisions prohibiting
discrimination on the ground of disability and sex.[68]
3.47
At the hearing, Ms
McKenzie added that :
if safety is paramount, then in those limited occasions the
civil aviation regulations should be able to take precedence without resort to
extended argument, [69]
3.48
When questioned regarding this concern during the
hearing, Qantas admitted that it had not sought consultation with HREOC to
address their issues, despite the fact that at least one issue (the exit row
issue) had existed for approximately 15 years.[70]
3.49
Commenting on the difficulty of defending claims of
discrimination by passengers, Qantas noted particular difficulty with the DDA,
stating that 'compliance with the Civil Aviation Legislation does not provide
Qantas with a clear defence to claims of disability discrimination.'[71]
3.50
Although section 47(2) of the DDA provides an exemption
in relation to an act done in direct compliance with a 'prescribed law', Qantas
believes that the Civil Aviation Safety Regulations, are not 'prescribed law'
for the purposes of s. 47, leaving Qantas to rely on satisfying the
'unjustifiable hardship' defence.
3.51
Consequently, Qantas submitted that the Civil Aviation Act 1988, or at least the
Civil Aviation Regulations 1988 and
the Civil Aviation Regulations 1998,
should be included as "prescribed law" for the purposes of section 47
of the DDA and the DDA Regulations.[72]
3.52
In addition, Qantas highlighted the fact that the SDA
has no comparable exemption as that which is allowed under section 47 of the
DDA; similarly, there is no 'unjustifiable hardship' defence available.[73]
Qantas submits that a similar exemption should be included in
the SDA in order to allow direct compliance with the Civil Aviation
Legislation.[74]
3.53
HREOC confirmed this in its submission:
The SDA does not contain a "prescribed laws"
provision; nor does it have an explicit inherent requirements limitation or an
unjustifiable hardship defence in relation to pregnancy discrimination.[75]
Committee View
3.54
The Committee notes the arguments of opponents of the Bill,
that a regulation making power is not appropriate as there is the availability
of exemptions, and relevant provisions of the SDA and DDA to allow
discrimination in limited circumstances.
3.55
The Committee also notes the views of Qantas, that the Bill
does not go far enough, and that (amongst other things) there needs to be an
'unjustifiable hardship' provision in the SDA. The Committee, however, does not
agree with the suggestions proposed by Qantas. The Committee does not believe
that the Civil Aviation Act 1988 or
Civil Aviation Regulations should be included as "prescribed law" for
the purposes of the DDA. Furthermore, the Committee does not believe that there
needs to be an "unjustifiable hardship" provision added to the SDA.
3.56
The Committee recognises the need for certainty for
those seeking to comply with aviation safety regulations, and notes the
argument of the DoTARS, that exemptions from HREOC are limited to a maximum of
five years, and are not intended to validate otherwise inconsistent
legislation.
3.57
The Committee notes the concerns expressed in
submissions, that granting a regulation making power will enable
"blanket" exemptions. However the Committee notes that as regulations,
the provisions made under the Bill will be
disallowable, and that DoTaRS has undertaken to engage in its usual
consultation process when preparing such provisions.
Removal of the right to make a complaint
3.58
Several submissions were concerned that allowing
regulations to be made effectively prevented people who felt aggrieved the
avenue to have their complaint investigated.
3.59
The National Association of Community Legal Centres
Disability Rights Network stated this repeatedly in its submission, saying that
the Bill will displace 'necessary safeguards
against human rights abuse.'[76]
If a regulation-making power is allowed, it poses a danger
that fundamental rights maybe sidestepped without recourse.[77]
3.60
LIV added that:
Further the DDA provides a process for complaining about an
unfair exercise of exclusion, something unlikely where there has been
indiscriminate application of a regulation.[78]
3.61
The WA Equal Opportunity Commissioner expressed concern
over this issue, stating that:
I value highly the right that a person aggrieved by an act of
discrimination can lodge a complaint and have that complaint investigated,
and, if necessary, determined by a court or tribunal. In this way, the
substance of the complaint and the conduct of the respondent can be examined in
a fair and balanced manner, under the guidance of the relevant statute.[79]
with regulations of the kind the bill proposes, conduct of
civil air carriers will no longer be subjected to the level of scrutiny that
is currently possible under the DDA and SDA. They are very likely to have the
effect of diminishing the substantive rights of a significant and vulnerable
section of the community[80]
3.62
The Commissioner added that she would ordinarily be
opposed to such regulations, however was reassured by the fact that:
any proposed regulations potentially inconsistent with
Commonwealth anti-discrimination law will be subject to clearance by the Human
Rights Branch of the Attorney General's Department, and will undergo
comprehensive consultation procedures and parliamentary scrutiny.[81]
3.63
Griffith Law School was also concerned at the possible
erosion of human rights, stating that to allow the ability to make regulations
'gives the Executive power to exempt the operation of the substantive
provisions of that human rights legislation without further scrutiny by the
Parliament.'[82]
3.64
In direct contrast to these concerns, HREOC submitted
that the purpose of the Bill was to ensure that
any new regulations would 'deal conclusively with relevant rights and
responsibilities rather than these being open to question through the SDA and
DDA.'[83] However
HREOC believed that in reality there remained some doubt that this would be the
case.
3.65
In evidence, HREOC explained that it believed even if
the Bill was enacted, parties may still be able
to make and possibly succeed in claims:
[The Bill] may well succeed in
validating the regulations for the purpose of their existence under the civil
aviation regime. We do not think that it necessarily validates discriminatory
actions in terms of immunising them from potential liability under the
anti-discrimination regime.[84]
3.66
A representative from the Attorney General's Department
helped to clarify the different interpretations of this issue. He stated that:
[the Bill]
removed a ground of complaint to the validity of any regulations made where
the ground of complaint is inconsistency with the Sex Discrimination Act or the
Disability Discrimination Act. Beyond that though it does not remove the
capacity for a person who feels they have been discriminated against to bring
their action to HREOC in the normal way.
The text of the particular regulation might remove the prospects
for a successful complaint, but, in respect of any particular actions taken
or purported to be taken under the regulations , they would still be amenable
to complaint under the normal human rights and equal opportunity process.[85]
Committee View
3.67
The Committee notes the concerns, which were expressed
by witnesses and within several submissions, that empowering the
Governor-General to make regulations that may be inconsistent with existing
anti-discrimination legislation would grant potentially wide-reaching exemptions
to anti-discrimination legislation.
3.68
However, the Committee notes that the regulation making
power is limited to provisions that are necessary for the safety of air
navigation. This will involve the 'clearance process' discussed below, as well
as proposed regulations being disallowable.
3.69
Furthermore, the Committee notes the comments of the
Attorney-General's Department, that whilst regulations made under the Bill
may reduce the prospects of a successful complaint against actions taken under
such regulations, there remains the ability to make complaints, and in such
cases parties will be required to justify their actions under such regulations.
Opinions regarding the 'clearance' process
3.70
The Explanatory Memorandum notes:
regulations which may
have the potential to be inconsistent with Commonwealth anti-discrimination
legislation will be subject to clearance by the Human Rights Branch of the
Attorney General's Department and will undergo comprehensive consultation
procedures and parliamentary scrutiny.[86]
3.71
As noted above, the WA Equal Opportunity Commission was
reassured by this undertaking. The Law Society of New South Wales also
'considered this was an important safeguard', and that 'any legislation
inconsistent with Anti-Discrimination legislation ought to receive intense
scrutiny.'[87]
3.72
The DoTARS submission also reaffirmed that this was an
important feature of the Bill, stating that the
'extensive and well-established consultative procedures' would include passing
'through CASA's Standards Consultative Committee.'[88]
3.73
At the hearing, a DoTARS representative expanded on the
current consultation process when drafting regulations. He explained that:
the key provisions , as
in setting of medical standards and so on, are in the civil aviation
regulations, which are made through an extensive consultative process. I
think there are about 10 steps that the Civil Aviation Authority goes through
in establishing its regulatory standards.[89]
3.74
The Attorney General's Department reiterated this when
they gave evidence that:
the consultation
process that the Legislative Instruments Act puts in place would also bear upon
any regulations made as well.[90]
3.75
However, both the LIV and the National Association of
Community Legal Centres' Disability Rights Network doubted the rigour of this
'clearance' process would be sufficient to protect human rights. Both
submissions used almost identical wording in their criticism of this process.
3.76
The LIV said that they believed that this 'clearance
process' does not present an adequate or
effective safeguard[91]
and raised concerns as to the capacity of the Human Rights Branch of the
Attorney General's Office to safeguard human rights of Australian citizens.[92]
3.77
The National Association of Community Legal Centres'
Disability Rights Network added that:
in light of a number of decisions casting aspersions on the
proposed scrutiny by this branch. it is troubling to note the apparent lack
of legal advice from the point of view of human rights within the Attorney
General's Department. the seeming insensitivity to human rights within
Government bodies bodes ill for the scrutiny of any regulations by the Human
Rights branch. it is doubtful whether
proposed air safety regulations will be subject to requisite rigorous
scrutiny by this branch in a poor substitute for the HREOC.[93]
3.78
People with Disability submitted that:
We lack the confidence that these clearance and consultation
commitments will be honoured in the absence of a specific legislative duty to
do so.[94]
In any case, scrutiny by an agency of the executive arm of
government, without the possibility of procedural or judicial review, seems to
us to be a very weak safeguard indeed.[95]
3.79
Ms Megan
Dixon, from Griffith
Law School,
expressed concern that:
Despite the statements in the explanatory memorandum, that
suggest wide consultation will be undertaken - there is simply no mandated
requirement for the government of the day - to do so.[96]
3.80
In contrast to these negative views, Qantas, when
questioned on the consultation process required for the making of any
regulations that may contradict discrimination laws, stated that it would be
satisfied with the proposed Government scrutiny, through the Human Rights Branch
of the Attorney General's Department.
3.81
Although welcoming of the 'commitment to wide
consultation before making regulations pursuant to the Bill',
HREOC submitted that such a commitment 'might more appropriately be reflected
in provisions on consultation, including with HREOC, being included within the Bill
itself'[97].
This opinion was reiterated in their conclusion as a recommendation[98] and also in its
opening statement, where Mr Mason
stated that:
We would certainly prefer that the bill, if it goes forward,
provides for a public process of consultation. Consultation within government
is a good thing but it is not the same good thing as consultation beyond
government with interested parties.[99]
3.82
His colleague, Ms
Ball, added:
HREOC's view is that we
welcome consultation and we would like to be part of any consultative process.[100]
Committee View
3.83
The Committee agrees that the consultation process when
developing regulations should be seen to be thorough and transparent to allay
the concerns expressed by some submissions.
3.84
The Committee believes that these concerns would be
addressed by amending the Bill to require that
consultation with HREOC be undertaken when preparing regulations in accordance
with the Bill.
Recommendation 1
3.85
The Committee recommends that the Bill
be amended to require that in preparing regulations in accordance with the Bill,
consultation with HREOC be undertaken. Subject to such an amendment, the
Committee recommends that the Bill proceed.
Senator
Marise Payne
Chair
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