Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

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

Passage History

Human Rights Legislation Amendment Bill 1998

Date Introduced: 3 December 1998

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 (title), 2 (commencement), 3 (schedule) and 4 (regulations) commence on Royal Assent. The substantive provisions commence on proclamation.

Purpose

This Bill proposes two significant structural changes to the operation of Federal anti-discrimination legislation.

• In response to the High Court's 1995 decision in Brandy, the Bill repeals the Human Rights and Equal Opportunity Commission's inquiry/determination functions and implements a scheme by which complaints not resolved through conciliation may be continued in the Federal Court in order to obtain an enforceable determination.
• A Federal Court 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. All registrar decisions are reviewable by a judge on application by one party.
• The Bill removes the power of specialist Commissioners to control complaint investigations and conciliation procedures which arise under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 and centralises these powers in the office of the President of the Human Rights and Equal Opportunity Commission.
• The Bill provides that specialist 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 the loss of the specific Commissioner's role in relation to conciliation.

Background

Since the inception of the Commonwealth anti-discrimination regime in 1975, procedures for dealing with discrimination complaints have been the subject of regular amendment. These amendments have generally been forged around attempts to reconcile the at times conflicting objectives faced by legislators in the context of anti-discrimination law - the desire to afford equitable and accessible justice to people subject to discrimination through alternative dispute resolution whilst at the same time ensuring as far as possible the coercive power of the law for anti-discrimination matters.

The Human Rights Legislation Amendment Bill 1998 similarly attempts to reconcile these objectives and has arisen in response to both constitutional and administrative concerns.

History of the Bill

The substantive provisions of this Bill were initially introduced in the previous Parliament on 4 December 1996 in the Human Rights Legislation Amendment Bill 1996. Debate on this Bill was not completed before the 39^th Parliament was prorogued.

On 6 February 1997, the Selection of Bills Committee recommended, and the Senate agreed, to refer that Bill to the Senate Legal and Constitutional Legislation Committee for consideration. After two extensions of time, the Committee tabled its report on the Bill on 26 June 1997.(1) Although the Majority Report supported the Bill, it made a range of recommendations for amendment. The Opposition provided a substantial Minority Report which, whilst broadly agreeing with the amendments concerning repeal of the Commission's inquiry functions, disagreed with a range of specific issues linked to Federal Court procedures and the role of specialist Commissioners. (A detailed discussion of the Senate Committee Report is found in the Concluding Comments section).

Overview of Enforcement Provisions in Anti-Discrimination Legislation(2)

The Racial Discrimination Act 1975 (RDA) was the first Commonwealth anti-discrimination law and provided for complaints of discrimination on specific grounds to be made to a Race Discrimination Commissioner, who would attempt to resolve the matter by conciliation. If conciliation failed, the aggrieved person could initiate proceedings in a court, which could grant such relief as the court considered just.

In 1981, the Human Rights Commission Act 1981 was enacted establishing the Human Rights and Equal Opportunity Commission (the Commission). The Commission's functions included inquiring into any act or practice or the Commonwealth, or acts done under Commonwealth legislation, that may be inconsistent with, or contrary to, the human rights and freedoms recognised in certain international instruments.(3) Where appropriate, the Commission was to endeavour to effect a settlement of such matters and was empowered to serve a notice on a person of its findings, including recommendations for the purpose of preventing a repetition or continuation of the discriminatory act or practice. The Commission was also required to report its findings to the relevant Commonwealth Minister.

The Sex Discrimination Act 1984 (SDA) expanded the Commission's role in making findings and recommendations. The SDA provided for complaints to be made on specific grounds in specified areas. A Sex Discrimination Commissioner was appointed to conciliate complaints. If conciliation failed, the Commission was empowered to conduct an inquiry into the complaint and where appropriate make declarations that the respondent had engaged in unlawful conduct and should perform certain acts to remedy the situation. The determinations of the Commission were not binding or conclusive and to obtain an enforceable determination, the Commission or complainant could initiate proceedings de novo in the Federal Court.(4)

The Human Rights and Equal Opportunity Commission Act 1986 (HRA) reflected the Commission's increasing role in the protection of human rights and empowered the Commission to make determinations and declarations in relation to race discrimination consistent with its powers concerning sex discrimination. These determinations remained unenforceable.

This tripartite structure for discrimination complaints of conciliation, an inquiry by the Commission and a possible de novo hearing in the Federal Court met with significant criticism on the grounds that the system was inefficient and prone to exacerbate, rather than ameliorate, the distress of a complainant.(5)

In light of these concerns, the question of the status of HREOC determinations was referred to the Senate Standing Committee on Legal and Constitutional Affairs in 1990. The Committee considered the complex constitutional issues raised by the separation of powers doctrine (which prohibits administrative bodies like the HREOC exercising judicial powers, such as enforcement of a decision) in light of the need to facilitate the most equitable structure for people alleging discrimination. The majority of the Committee adopted HREOC's proposal for the registration of HREOC determinations by the Federal Court and giving them the effect of orders of the Federal Court unless the respondent makes an application to the Court for review. The then Chief General Counsel advised the Committee that as the proposal incorporated a full judicial review of a registered determination, the enforceablity of registered determinations would not amount to judicial power being granted to the Commission and was thereby constitutional. However, the minority report (Senators Vanstone, Kemp, O'Chee and Walsh), disagreed with the constitutional validity of the scheme and proposed that the Commission should have the powers to attempt conciliation of a complaint, but where conciliation was unsuccessful the matter should be directly referred to the Federal Court.

(6)In accordance with the majority report, the Government introduced the Sex Discrimination and Other Legislation Amendment Bill 1992(7) which, among other things, amended the newly enacted Disability Discrimination Act 1992 (DDA), the HRA, the RDA and the SDA to allow registration of the Commission's determinations in the Federal Court, which would have effect as if it were an order of the Court unless the respondent applied to the Court with 28 days for a review of the determination. The Bill became operative on 13 January 1993.

The Brandy Decision

The enforcement procedures of the 1992 Act were the subject of a constitutional challenge in the case of Brandy v Human Rights and Equal Opportunity Commission.(8) Following a complaint lodged with the Commission pursuant to the RDA, the Commission had found that Brandy had breached the RDA and had made a determination including payment of damages. The determination was duly registered in the Federal Court. Brandy challenged the constitutional validity of the determination on the basis that it was an exercise of judicial power, which may only be conferred on a Court and not an administrative body such as the Commission.

The High Court unanimously decided that provisions within the RDA which allowed determinations of the Commission to be enforced through registration in the Federal Court offended the separation of powers and was thereby unconstitutional. Although the High Court acknowledged that what constituted 'judicial power' was slippery, it was at least clear that the ability to enforce decisions is an unequivocal exercise of judicial power. Accordingly, as upon registration a determination of the Commission would have 'effect as if it were an order made by the Federal Court', then this function was an exercise of judicial power, regardless of the fact that a respondent could initiate a Federal Court review of the determination.

As the SDA and the DDA had identical enforcement mechanisms, those provisions were also invalidated by the decision.

Response to the Brandy Decision

A two stage response was announced to the Brandy decision on 27 February 1995. Firstly, the pre-1992 enforcement process was temporarily restored, therefore implementing a schema of de novo hearings in the Federal Court following a Commission inquiry into an unconciliated matter.(9) Secondly, consideration of a permanent solution was referred to the tripartite review committee (Attorney-General's Department, Department of Finance, the Commission) which was already considering the structure and internal operation of the Commission. After wide consultations, the Committee recommended the following.(10)

• Creation of a new Human Rights Division of the Federal Court.(11)
• Division of complaint handling into two stages. Firstly, conciliation would be attempted by the Commission in the first instance, and if a matter was unable to be conciliated, proceedings de novo could be commenced in the Federal Court.
• Establishment of Judicial Commissioners, appointed as officers of the Federal Court, who would have their functions delegated by Federal Court judges.
• Empower the relevant Commissioner to apply to appear in any Federal Court hearing as amicus curiae ('friend of the Court') if the order sought may have a significant affect on human rights of specific groups generally, if the case had significant implications for the administration of the Act or if it were in the public interest.
• An emphasis on procedures which promote access and equity, in terms of costs, evidence and procedures, access to childcare, interpreters and appropriate facilities for peoples with a disability.

The previous Attorney-General, Mr Michael Lavarch MP, announced reforms in accordance with these changes on 28 January 1996,(12) but no action was taken prior to the 1996 Federal election. The Coalition's Law and Justice policy also reflected the Committee's recommendations and on 8 August, the Attorney-General, Mr Daryl Williams MP, announced Cabinet agreement to reforms to simplify dispute resolution of human rights matters generally in accordance with the Committee's recommendations.

Human Rights Legislation Amendment Bill (No. 2) 1998

As complementary legislation to the current Bill, the Government introduced the Human Rights Legislation Amendment Bill (No. 2) 1998 into the previous Parliament. The purpose of the Bill is to:

• rename the Human Rights and Equal Opportunity 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 39^th Parliament was prorogued before debate on this could be completed. The Senate Legal and Constitutional Legislation Committee provided an Interim Report on the provisions of the Human Rights Legislation Amendment Bill (No. 2) 1998 which was tabled on 10 August 1998. On 12 December 1998, the Government again referred the provisions of the Bill to the same Senate Committee for consideration, although the Bill had not been formally introduced into the new Parliament. The reporting date is 17 February 1999.

Legal Aid

In the 1996 Budget, the Government set a target of $100 million in savings on legal aid over three years, although this target has been revised slightly downwards.(13)

The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) has expressed concern that proposed cuts in federal funding for State and Territory legal aid will result in far fewer grants of legal aid for discrimination matters. The Victorian and NSW legal aid commissioners have announced that they will no longer grant legal aid for discrimination complaints. Additionally, prior to July 1997, the test for the grant of legal aid in discrimination cases was whether there were reasonable prospects of success. The relevant guidelines now read:

The Senate Legal and Constitutional References Committee, in their Inquiry into legal aid, received evidence that under this guideline, legal aid is now only available in Commonwealth discrimination matters for class actions and test cases (actions which are extremely rare.)(14)

 

Main Provisions

Transitional Provisions

Items 4-22 provide a transitional framework for matters lodged with the Commission prior to the commencement of this Bill. In general, this framework provides that if a complaint has been lodged but an inquiry has not commenced for whatever reason, then the proposed regime will apply. If an inquiry has been commenced, the inquiry proceeds under the current regime.

Schedule 1

The substantive provisions of the Bill can be categorised under four headings:

• repeal of complaint and conciliation mechanisms from the DDA, RDA and SDA
• restructuring of the role of the President of the Commission
• the new structure for complaint handling and
• the role of Federal Court in terminated complaints.

Differences between provisions currently operating in the DDA, the RDA, the SDA and the HRA and proposed provisions are indicated where significant.

A. Repeal of Complaint and Conciliation Mechanisms from the DDA, RDA and SDA

Items 3-8 (DDA), 60-63 (RDA), 83-86 (SDA) repeal the definitions in the DDA, the RDA and the SDA which relate to complaints, inquiries and conciliation (for example, class member; complainant; compulsory conference; interim determination; representative complaint). Items 36-48 relocate the relevant definitions in the HRA.

Items 18-24 (DDA), 67-73 (RDA) and 91-97 (SDA) repeal almost entirely each Part of the DDA, RDA and SDA entitled 'Enquires and Civil Proceedings'. Currently, these Parts cover inquiries by the Commissioners, inquiries by the Commission, and enforcement of determinations in the Federal Court. In relation to the DDA and the SDA, these Parts will be renamed 'Functions of Human Rights and Equal Opportunity Commission' and in relation to the RDA 'The Race Discrimination Commissioner and Functions of the Commission'. For all three Acts, the substance of these Parts will continue to confer the following powers on the Commission:

• Promote understanding and acceptance of each Act
• Develop, conduct and foster research and educational programs in accordance with the spirit of each Act
• Prepare and publish appropriate guidelines for the avoidance of unlawful discrimination
• Intervene where appropriate with the leave of the Court
• Make inquiries and determinations on matters referred to by the Minister
• In relation to the DDA and the SDA, the power to grant temporary administrative exemptions
• In relation to the DDA, the continuation of current powers in relation to the development and monitoring of disability standards.

Item 96 repeals the powers in the SDA associated with the reference of discriminatory awards and agreements to the Australian Industrial Relations Commission and the reference of discriminatory determinations to the Remuneration Tribunal and the Defence Force Remuneration Tribunal. Proposed sections 46PW-46PY inserts these powers as Part IIC of the HRA.

Items 26 (DDA), 77 (RDA) and 99 (SDA) repeal the offences in each Act which relate to complaint handling functions of the Commission, namely the offences relating to failure to attend a conference, failure to furnish information, offences in relation to the Commission and issues relating to self-incrimination. Offences related to these issues are transferred to the HRA (discussed below). A range of offences will still remain in each specific Act. In the DDA, the offences remaining will relate to the provisions of false and misleading information and the failure to provide actuarial or statistical data. In the RDA, the offences remaining are in relation to the administration of the Act, provision of false and misleading information and disclosure by a member of the Commission of private information. In relation to the SDA, remaining offences relate to advertisements, failure to provide actuarial or statistical data, disclosure of confidential information, provision of false or misleading information; victimisation and obstruction of administration of Act.

B. Restructuring of the Role of the President

Item 52 repeals the detailed table in section 8A of the HRA setting out the main functions and powers of the President conferred by the DDA, the HRA, the RDA and the SDA and replaces it with the plenary power that the President is responsible for managing the administrative affairs of the Commission. Item 57 also assigns the President responsibility for all staff.

Item 55 provides that the President cannot delegate to another member of the Commission any power or responsibility in relation to the handling of complaints or referral of discriminatory awards or determinations. This is fundamentally different to the current structure where the specific Acts grant the role of conciliation and other complaint handling functions to the Disability Discrimination Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner and is a key aspect of the centralising objective of the Bill. The proposed role of the Commissioners as amicus curiae in Federal Court proceedings (discussed below) is linked to this separation of Commissioners from complaint handling functions. Notably, it is also linked to the proposal in the Human Rights Legislation Amendment Bill (No. 2) 1998 to replace specialist Commissioners with more generalist Deputy Presidents.

C. New Complaint Handling Framework

Item 58 sets out the new framework for complaint handling to be exercised by the President. As noted above, this framework consolidates the specific frameworks for complaint handling currently in the DDA, the HRA, the RDA and the SDA and is primarily modelled on the DDA. As this item runs for several pages, for ease of reading, the proposed sections will be included in the discussion below:

Proposed section 46P: Lodging a Complaint provides that complaints must be lodged with the Commission in writing and must allege unlawful discrimination. There are three categories of persons by whom a complaint can be lodged

• A person aggrieved by the alleged unlawful discrimination, either on their own behalf or on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination.
• 2 or more persons aggrieved by the alleged unlawful discrimination either on their own behalf or on behalf of themselves and one or more other persons aggrieved by the alleged unlawful discrimination
• A person (who may or may not be aggrieved by the unlawful discrimination) or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.

This schema extends the current law in two instances. Firstly, in relation to the RDA and the SDA, it allows a person who is not aggrieved by the alleged unlawful discrimination to initiate a complaint, whereas currently only a trade union may lodge a complaint without being an aggrieved person. Secondly, in relation to the DDA it is clarified that a trade union is entitled to initiate a complaint on behalf of a person or persons aggrieved. This is not necessarily the case under current law.

Proposed section 46PA: allows the complainant to amend a complaint at any time with the leave of the President. (This provision was not included in the 1996 Bill and is pursuant to issues raised in the Senate Committee inquiry). The provision should be read in conjunction with proposed subsection 46PF(3) which provides that a complainant or respondent may amend the complaint to add a respondent, with the leave of the President.

Proposed provision 46PA: Representative Complaints provides complaints must be against the same person and arise out of the same, similar or related circumstances. A written complaint must describe or otherwise identify the class members, however it is not necessary to name them individually or specify a number and it is not necessary to have the consent of the class members to lodge a complaint. The President, on application in writing by any affected person, may replace a complainant with another person as complainant. (This power to replace a complainant was not included in the 1996 Bill).

Commentary on these provisions is provided in this Digest's conclusion.

Proposed section 46PE: Complaints Against the President, Commission or Commissioner provides a framework to deal with situations where the respondent to a complaint is either the President, the Commission or a Commissioner. Proposed subsection 46PE(4) provides that the President can delegate any of the powers in relation to the complaint to a member of staff or any other person approved by the Commissioner in such a situation. Further, if a complainant seeks a termination of the complaint, the President must grant such a termination if all affected persons agree.

These proposals were not included in the 1996 Bill and are aimed at solving conflict of interest concerns. However, it is unclear how far these proposals go in overcoming the possibility of such a conflict.

Proposed section 46PF: Inquiry by President mirrors current provisions in the RDA, SDA and DDA, requiring that if a complaint is lodged, the President must inquire into the complaint and attempt conciliation.

Proposed section 46PH: Termination of Complaint - The President's powers to terminate a complaint are generally modelled on those in the DDA, and extend the current powers to decline a complaint under the RDA and the SDA. The President's power to terminate a complaint on the grounds that the complaint has been dealt with adequately elsewhere, that a more appropriate remedy in relation to the complaint is reasonably available or that the complaint would more effectively be dealt with by another statutory authority are new grounds for termination in relation to complaints under the RDA and SDA. The power to terminate on the ground that the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court is novel for each Act.

Proposed 46PI: President's Power to Obtain Information - The President's power to obtain information reflects the current law in the DDA, the RDA and the SDA. The only new power of the President is proposed section 46PI(5) which states that a document in possession of the President must be allowed to be inspected by any person entitled to inspect the document if it were not in the President's possession, a power which is currently only in the DDA.

Proposed sections 46PJ and 46PK: Compulsory Conferences - The President's proposed power to direct attendance at a compulsory conference and the proposed proceedings at a compulsory conference mirror current provisions in the DDA, the RDA and the SDA, with the exception of minor drafting clarifications.

Offences: Offences against the anti-discrimination regime will continue to be split between the HRA and specific anti-discrimination legislation in accordance with whether or not they are offences directly related to the complaint process.

Proposed sections 46PL-46PN relate to offences in relation to a person failing to attend a compulsory conference, failing to give information or produce documents or providing false or misleading information, subject to the person having a 'reasonable excuse'. These all reflect the current law, except in one important respect. Currently, the DDA, the RDA, the SDA and the HRA provide that it is not a reasonable excuse in relation to the failure to furnish information or produce documents to claim self-incrimination.

The Bill also expands the defence of self-incrimination for a respondent or other person to the President's range of powers to obtain information and documents. This is discussed in the concluding comments.

D. Proceedings in the Federal Court

The second key structural change to the anti-discrimination complaint handling machinery is the shift to the Federal Court of an inquiry into a matter once conciliation has been terminated. This shift responds to the High Court's decision in Brandy.

Proposed section 46PO: Application to Court if Complaint is Terminated - The pre-conditions to making an application to the Federal Court in relation to an anti-discrimination matter are that:

• a complaint made to the Commission has been terminated by the President and
• the giving of a notice by the President to all relevant complainants to the matter.

Once both of these pre-conditions have been met, any person who was an affected person (a person on whose behalf a complaint was lodged) in relation to the complaint may make an application to the Federal Court alleging unlawful discrimination. There is also no provision made for the respondent to make an application to the Federal Court following the termination of a complaint by the President. This follows logically from the conceptual framework that a complaint to the Commission is legally separate from an application to the Federal Court, which must be initiated de novo. As it is the complainant's matter, it is a matter for them to initiate such de novo proceedings.

Applications must be made within 28 days of the issue of the termination notice and the unlawful discrimination alleged must be the same or the same in substance or must arise from the same or substantially the same acts omissions or practices, which were the subject of the terminated complaint. It is unclear how far this formulation provides sufficient flexibility to enable a complainant to redefine the grounds on which unlawful discrimination is claimed. Not being locked into legal descriptions formulated at the outset of a complaint is important given the common absence of legal advice complainants will have access to prior to lodging a complaint. Commentary is provided on this in the conclusion.

Proposed section 46PP: Interim Injunctions - Provides the Federal Court the power to grant interim injunctions up until termination of the complaint by the President. Application for an interim injunction can be made by the Commission, a complainant, a respondent or any other affected person (therefore anyone on whose behalf a complaint is lodged). Proposed subsection 46PO(6) grants the Federal Court the power to grant interim injunctions pending determination of Federal Court proceedings.

Federal Court Judicial Registrars

Item 32 provides that the Rules of the Federal Court may delegate to Judicial Registrars any of the Court's human rights legislation powers, except for the power to grant an interim injunction. The proposed amendments lock into other legislation related to Federal Court judicial registrars, for example the amendments contained in the Workplace Relations and Other Legislation Amendment Act 1996 which, among other things, provide any party to a proceeding the right to apply for a review by the Federal Court of the findings of a judicial registrar.(15)

The Bill is drafted on the assumption that the right to apply for a Court review ensures the delegation of judicial powers to a registrar is constitutional vis-a-vis the doctrine of separation of powers.(16) However, the Senate Committee Report raised concerns about this assumption. These are discussed in the concluding comments below.

The form of the review to be taken by the Court has been discussed both by the High Court(17) and a recent decision of Wilcox CJ in relation to judicial registrars in the Industrial Relations Court.(18) The majority of the High Court considered that a review of the facts and law would be constitutional. Wilcox CJ interpreted this to mean that the review required was not a hearing de novo in the sense that it was conducted as if there had never been a prior hearing, but rather the judge must conduct a review in which the parties are not bound by the course they took before a judicial registrar and that the judge is in no way bound by the findings of fact. Such a framework allows the judge to either conduct a complete rehearing (i.e. de novo), or to conduct a rehearing on one point only.

Equity Provisions

Item 58 also sets out a range of provisions which are aimed at ensuring the most equitable process possible for anti-discrimination matters in the Federal Court system. These provisions are linked to the attempt to balance the spirit of anti-discrimination with the effects of the Brandy decision.

Proposed section 46P(4) requires the Commission to assist a complainant in formulating or writing an initial complaint to the Commission and proposed section 46PT states that the Commission may assist a person in preparing the forms required for an application to the Federal Court. However, this will be subject to budgetary constraints.

Proposed section 46PQ states that as well as the right to appear in person or with a barrister and solicitor, a party to anti-discrimination proceedings in the Federal Court may be represented by another person who is not a barrister or solicitor unless the Court considers it inappropriate. This is contrary to the general Federal Court Rules on appearances, which provide that an applicant or a respondent can only be represented by themselves or by a solicitor,(19) and is an attempt to ameliorate the costs of legal advice. However, given the typical imbalance of power vis-a-vis complainants and respondents and their different access to financial and legal resources (for example many large corporations have in-house counsel) the equitable potential of this provision may prove to be very limited.

This proposal also provides that unless this representative is a barrister or solicitor, they are not entitled to demand or receive any fee or reward for this appearance work. This was not included in the 1996 Bill, and the Explanatory Memorandum states that it is aimed at preventing unconscionable behaviour by people who are not bound by the rules of the Court (unlike lawyers). An unintended consequence however, may be that it is impossible to attract a representative to assist for no payment, so that a person is left with the choice of a legal officer or self-representation.

Proposed section 46PR provides that the Federal Court is not bound by technicalities (for example rules of evidence and procedure), subject to the effect of the Constitution.

Proposed section 46PU provides that a person who has commenced proceedings in the Federal Court or is a respondent may apply to the Attorney-General for the provision of assistance. In order to grant assistance, the Attorney-General must be satisfied that it is reasonable and would involve hardship if the grant was not made. This reflects current provisions for assistance in the DDA, the RDA and the SDA with respect to proceedings before the Commission and the Federal Court.(20) The Federal Court Rules also contain other equity measures in relation to costs.(21)

Two further provisions provide a link between the operation of the Commission and Federal Court proceedings. Proposed section 46PS allows for the President to provide the Federal Court with a written report on a terminated complaint, as long as the report does not set out anything done or said during conciliation proceedings. Although this provision smudges the conceptual division between a complaint to the Commission and an application to the Federal Court, it allows for an expeditious and efficient Court hearing.

Amicus Curiae Role of Commissioners

Proposed section 46PV provides a role of amicus curiae ('friend of the Court') for the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Disability Discrimination Commissioner, the Human Rights Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner. These Commissioners can apply to the Court to act as amicus curiae if they believe:

• the orders sought, or likely to be sought, will have a significant affect on the human rights of non parties
• proceedings have significant implications for the operation of the relevant Act, in the relevant Commissioner's view or
• it is in the public interest.

The role of Commissioners as amicus curiae reflects the newly defined role of Commissioners as human rights advocates and educators rather than as officers integrally involved in the conciliation and inquiry process.

Concluding Comments

The Bill's response to the Brandy decision (ie removal of the Commission' inquiry power and provisions of a scheme to apply to the Federal Court for an unsuccessful conciliation) reflects the proposals of the previous Government. The Commission has stated that granting the Federal Court the power to handle unconciliated complaints is the best outcome in the circumstances.(22)

As the Senate Inquiry permitted a detailed analysis of the majority of the other provisions in the Bill, these comments will highlight the key issues raised in this inquiry. It should be noted that this inquiry did not take into account the provisions of the Human Rights Legislation Amendment Bill No. 2 1998 in relation to abolition of specialist Commissioners and their replacement by more generalist Deputy Presidents.

Role of Specialist Commissioners

The removal of the specialist Commissioners from the complaints handling process attracted considerable comment. The Government has stated that this rationalisation is to ensure a more efficient, effective and consistent decision making process.(23) HREOC, whilst generally supporting the rationalisation, gave evidence that the President should be able to delegate work to a Commissioner, as long as that Commissioner could not then act in an amicus curiae role in possible future legal action on that complaint.

Other evidence before the Committee argued that this proposal represented a serious downgrading of the Commissioner's functions and would result in a significant loss of specialised expertise concerning the various forms of discrimination.

The Opposition and the Australian Democrats opposed the proposal, stating that specialist Commissioner's powers in relation to complaint handling should be retained, given that their specific expertise would ensure more successful conciliation outcomes, rendering Federal Court actions less likely. 'We believe that the Government's arguments based on efficiency represent a false economy.'(24) However, these parties agreed that a Commissioner who had conciliated a matter should not be permitted to act as amicus curiae in future litigation.

Commissioners and Proceedings in the Federal Court

Evidence was given by several witnesses that Commissioners should be given the power to initiate proceedings in the Federal Court in individual or group matters where they think it is appropriate. Mr John Basten QC argued that there is already a precedent for such action, in section 80 of the Trade Practices Act 1974, which empowers the Australian Competition and Consumer Commission to bring proceedings in relation to a breach or attempted breach of certain provisions of the Act.(25) The Minority Report by the Opposition and Australia Democrats agreed to this proposal.

The Attorney-General's Department maintained that only people affected by discrimination should have a right to bring an action in the Federal Court.(26)

Systemic Discrimination

A significant problem with all anti-discrimination legislation is that, as it is based upon an individual complaint based model, it is acutely limited in its ability to cope with systemic forms of discrimination. As systemic discrimination is the root of more obvious forms of individual discrimination, mechanisms to address systemic discrimination seem urgently required.

The Bill's changes to the structure of representative complaints may assist in addressing this problem, however the reliance of representative complaints on a complaint based system may still prove inadequate. One possibility is the implementation of a non-complaints based procedure investigation into possible systemic forms of discrimination. Recommendations could then be presented in a report to parliament for action. This scheme has the benefit of potentially redressing discriminatory actions affecting a range of people, and reflects powers in the British Sex Discrimination Act. Legislating for specific Commissioners to have a similar role would sit well with the tenor of the Bill, which emphasises the new role of specific Commissioners as advocates and educators.

In response to a similar suggestion to the Committee, the Attorney-General's Department stated that Commissioners will have an ongoing educative role and may raise the systemic aspects of a particular allegation of discrimination in the exercise of their role as amicus curiae. Additionally, the practical impact of certain Federal Court orders may have a systemic affect.

The Minority Report of the Labor Party and the Australian Democrats recommended that the Bill be amended to provide Commissioner with power to address systemic discrimination.

Notice of Federal Court Proceedings for the Purpose of the Amicus Curiae Role

HREOC provided evidence to the Senate Committee that, to ensure the most effective use of the amicus curiae role, it was appropriate for Commissioners to be served notice of Federal Court proceedings.

The Attorney-General's Department stated that the President's power to provide any member of the Commission with a copy of a termination report should serve as an appropriate alert service, however HREOC maintained that even if a President could prepare reports on all terminated cases within budgetary constraints, this would not notify of impending Federal Court proceedings.

Noting HREOC's concern, the Senate Committee recommended that the Attorney-General consider whether arrangements should be made for the Human Rights Registry of the Federal Court to advise HREOC of the filing of discrimination applications. Notably, there are similar powers in section 63 of the Native Title Act 1993.

This recommendation was not accepted by the Government.

Complaints Against Commonwealth Agencies

The DDA,(27) the RDA(28) and the SDA(29) currently make special provision for enforcing HREOC determinations against Commonwealth agencies, requiring that Commonwealth agencies must comply with HREOC determinations without going to the Federal Court. The Bill repeals and does not reproduce these provisions. As these provisions can be conceptualised as a Commonwealth administrative issue, rather than a judicial issue, these changes do not appear to be required by the Brandy decision. This appears to be supported by the comments of the Attorney-General's Department when questioned by the Committee on the rationale for this change:

Evidence before the Senate Committee questioned the equity and appropriateness of these amendments. Ms Rosemary Hunter, an expert in anti-discrimination law, argued that:

The Committee's report also noted that there is an argument that the Department's position:

The Opposition and the Australian Democrats more strongly stated that 'it is totally unacceptable that private citizens will only be able to enforce discrimination complaints against Commonwealth government departments and agencies through the determination of a complaint in the Federal Court',(33) and recommended continuation of the current provisions.

Representative Complaints

The schema for representative complaints is based on that in the Federal Court of Australia Act 1976 (Federal Court Act), however it differs in several respects. These differences are important given that such complaints may potentially cross from the Commission to the Federal Court.

(i) Section 33C of the Federal Court Act requires that for a representative action to be initiated there must be a minimum of seven persons claiming against the same person. This requirement is somewhat malleable. Case law suggests that it is not necessary that the application demonstrate that at least seven persons have associated claims, but that it is sufficient if the evidence before the Court justifies the assumption that at least seven persons have such a potential claim.(34) Section 33L of the Federal Court Act also provides that if at any stage in the proceeding it appears likely to the Court that there are fewer than seven group members, the Court may order the proceedings continue or discontinue.

The minimum number required in the Bill for the initiation of a representative action in the Commission is two. If a representative complaint of five people cannot be conciliated by the Commission and the complainants wish to pursue the matter in the Federal Court as a representative complaint, it is unclear how this will occur. In order to trigger the right of a Federal Court application, a complainant must have received a termination notice from the President. Termination notices are given to all 'affected persons' involved in the complaint. Therefore it would appear impossible for a representative action involving only five people in the Commission to be initiated as a representative action in the Federal Court. It is possible that this difficulty could be ameliorated under the above mentioned section 33L of the Federal Court Act but this is unclear. It is still open to each individual complainant to lodge a Federal Court application separately.

(ii) The standing requirements as between the Bill and the Federal Court Act also differ. As noted above, the Bill proposes that a complaint can be initiated by a person (who is not necessarily a person aggrieved) or a trade union on behalf of more than one other person. Section 33D of the Federal Court Act, however, requires that a person who is able to initiate a representative action must have a 'sufficient interest to commence a proceeding on his or her own behalf against another person'.(35) This would exclude a person who is not aggrieved or a trade union from initiating an action in the Federal Court.

(iii) The third main difference between the Bill and the Federal Court Act is that the originating process under the Bill does not require specification of the common issues of law or fact on which the representative claim is grounded, a requirement currently in the DDA, the RDA and the SDA. The Explanatory Memorandum states that this 'requirement will be removed because it imposes on complainants at an early stage of complaint handling a burden which is not justified by the nature of the inquiry and conciliation process'. After conciliation is terminated it is envisaged that those matters could more fully be articulated in a complaint to the Federal Court.

The Minority Report of the Labor Party and the Australian Democrats recommended among other things that the Bill be amended to provide for:

• representative action to be brought by two or more people and
• to allow persons alleging the same source of discrimination but seeking different remedies to form party of the one action.

Amending Complaints

The Senate Committee received a range of evidence in relation to the importance of being able to amend a complaint following initial lodgement.

The Bill currently provides two avenues for amending a complaint: any complaint or respondent may amend a complaint to add a respondent, with the leave of the President (proposed subsection 46PF(3)); a complainant may generally amend the complaint with the leave of the President (proposed subsection 46PA).

However, once a complaint has been terminated, then it cannot be amended (proposed subsection 46PF(4)). The Bill provides that the unlawful discrimination alleged in an application to the Federal Court must be:

• the same as (or the same in substance as), or
• must arise out of the same (or substantially the same)

act, omissions or practices that were the subject of the terminated complaint.

Evidence before the Committee argued that this test raises questions of efficiency and equity. Firstly, Mr John Basten QC argued that if legal advice was not sought during the HREOC stage of the complaint, then the matter may be drafted too narrowly to properly litigate all issues which would satisfactorily finalise a matter. Secondly, the current framework would not permit the addition of related discrimination (such as victimisation) which occurred after the termination of a complaint. Ms Chris Ronald, a barrister with expertise in discrimination matters, told the Committee that:

The Opposition and Australia Democrats supported this argument. On the other hand, Attorney-General's Department stated to the Senate Committee that these proposals were inconsistent with the Government's policy that discrimination matters go through conciliation first, but suggested that linked matters may be able to be expedited.

Self Incrimination

The Bill expands the current defence of self-incrimination in the DDA, the RDA and the SDA for a respondent or other person with regard to the President's range of powers to obtain information and documents. Evidence before the Committee stated that this change may cause significant detriment to a complainant who requires access to documents held by the respondent and is at odds with the non-judicial and confidential nature of a conciliation hearing.

Enforcing Conciliated Agreements

Evidence before the Committee argued that there should be some mechanism to enforce conciliated agreements, for example requiring that each conciliated agreement be set down and signed as an enforceable agreement.

The Attorney-General's Department said that where a respondent breaks a conciliated agreement 'the complainant will be able to relodge the complaint with the Commission and the complaint can be quickly terminated.'(37)

The Committee noted that 'this may not be entirely satisfactory because the party not in default would be obliged to litigate the whole matter or at least seek a judgement on the deed of release or terms of settlement.' The Minority report supported a provision which would enable a conciliated agreement to be formally drafted as a document.

Judicial Registrars: Constitutional and Practical Issues

Constitutional and practical concerns can be raised about the proposed structure of judicial registrars.

Constitutional Concerns

The Senate Committee raised concerns that the power of judges to delegate matters to judicial registrars was not as broad as was provided for in the Bill, or may be interpreted more narrowly by a Court. In particular, the Committee was concerned that there was uncertainty as to the type of matters, or the extent to which matters, can be delegated to judicial registrars. The Bill only provides that judicial registrars cannot grant interim injunctions. As this is the only express limitation, the Bill leaves it to judges to decide what powers and functions can be delegated to registrars. Although this may be on the ground that it would be unconstitutional for the Parliament to direct the Courts what they must delegate, Peter Bailey of the ANU Law Faculty argued that the Bill comes very close to telling the Court how to manage its business in a different way.

The Committee noted that this view gains some support from Justice Dawson in Harris v. Calladine (39)which states that a Federal Court must be able to exercise a real choice for itself over those matters, if any, which are to be delegated. Effective supervision and control will not be maintained if there are insufficient judges for the purpose.

The Committee recommended that a preferred approach would be to rely on the general power to delegate rather than including a specific provision in the Bill for two reasons:

• that by specifically providing for delegation to registrars, the Bill sets out to encourage such delegation and may be seen as encouraging a breach of the spirit, at least of the separation of powers and
• the impression may arise that discrimination matters are seen as less important than other Federal Court work, such as commercial or property matters.

This recommendation was not accepted by the Government.

Practical Implications of Judicial Registrars

The use of judicial registrars appears to be aimed at promoting as informal and accessible a Federal Court as is constitutionally possible and it is likely that most matters in the Federal Court will initially be dealt with by a judicial registrar. Given this, then, the Bill does not necessarily move very far from the tripartite structure for anti-discrimination matters so criticised prior to enactment of the 1992 enforcement provisions. Instead of having conciliation, an inquiry by the Commission whose determination is unenforceable and then a de novo hearing in the Federal Court, the Bill proposes a tripartite model of conciliation, an inquiry (generally by a judicial registrar, which although enforceable is subject to an automatic right of appeal), and the possibility of another hearing by a Federal Court judge (the form of the review is discussed above).

If there are to be judicial registrars and rights of review before a Court, then it is arguable that it would be effective for registrars to be organised in such a way that they are able to develop a human rights expertise, a mechanism which may serve to contain the scope of a review process. This could be achieved by providing for specific human rights judicial registrars and providing resources for ongoing training in human rights and anti-discrimination jurisprudence.

The Attorney-General's Department disagreed with the proposition of providing resources for specialised training for both judicial registrars and judges on workplace flexibility grounds.

Court Procedure and Evidence

Proposed section 46PR states that the 'Court is not bound by technicalities or legal forms', subject to the Constitution. Concerns were raised to the Committee that this provision does not sufficiently address questions of access to the Court for the typical applicants in discrimination matters. Ms Rosemary Hunter described the requirement as 'minimalist' and 'a rather slender basis for such necessary modifications', arguing that a fundamental feature of human rights legislation is that it cannot be treated simply as the province of lawyers, but must be accessible to ordinary people who are often in a situation of disadvantage.(41)

Another witness, Associate Professor Tahmindjis stated that the provision is so narrow, it was even unclear whether it exempted the rules of evidence. This view was supported by legal advice provided to the Blind Citizens of Australia, who argued that the Bill should exempt anti-discrimination matters from onerous evidentiary rules.

The Attorney-General's Department replied that in recent times, evidence rules had been simplified and clarified and that in certain circumstances the Federal Court could dispense with the rules of evidence if their application would cause unnecessary expense or delay. However, this response does not deal with equity concerns for applicants in often disadvantaged positions.

Financial Barriers to the Federal Court

As previously noted, evidence before the Committee indicated that reductions in the Commonwealth legal aid budget would exacerbate access difficulties to the Federal Court for many applicants. Court fees and costs in the Federal Court were also raised as seriously inhibiting complainant access.

Court Fees

Federal Court fees for one day in Court are in excess of $2,000. Federal Court Rules provide for general provisions for waiver of fees where a person holds a health or concession care, is in receipt of legal aid, Austudy/Abstudy, is under 18 or in the opinion of the registrar is suffering financial hardship. Fees can also be deferred in cases of emergency.

Despite these exceptions, evidence was provided by a range of submissions that the imposition of court fees would provide a very significant impediment to the lodging of a discrimination matter in the Federal Court. Many submissions argued that court fees be waived entirely in human rights cases, a position also advanced by HREOC.

The Attorney-General's Department advised that 'after careful consideration the Government had decided that the usual rules in relation to fees should apply to human rights matters' as a matter of policy.

Alternatively, the Labor Members Minority Report noted that one of the clear findings of the Access to Justice Report,(42) was that most ordinary people are unable to pursue legal matters due to prohibitive court fees. Consequently, they recommended that given that discrimination matters typically involve imbalances of power between the applicant and the respondent, it was appropriate that only a nominal filing fee be imposed on discrimination matters. This was supported by the Australian Democrats.

Legal Costs

The Committee identified two concerns in relation to legal costs:

• whether the usual legal rule of 'costs follow the event' should apply and
• whether lawyers acting for applicants in discrimination matters should be able to charge solicitor/client costs at a market rate or be limited to party/party costs at the Federal Court scale (which would be less expensive).

Disability groups said that for people on disability pensions, the possibility of costs following the event would prove an insurmountable barrier to lodging a complaint, regardless if there was the possibility of costs not being awarded against an applicant.

Other community groups repeated this concern, noting that the vast majority of discrimination complainants were on modest means, or at least disadvantaged compared to the respondent, and that 'the costs barrier will weight the whole system ... in favour of respondents, who characteristically can command greater resources than complainants.'(44)

In the Federal Court's native title jurisdiction, a comparable jurisdiction to the proposed human rights regime, section 85A of the Native Title Act 1993 provides that each party will bear their own costs (ie costs do not follow the event).

The Attorney-General's Department has stated that there is 'nothing so different about these sorts of cases that would merit special measures regarding costs'. Additionally, the Department stated that by allowing costs to follow the event, speculative actions would be encouraged. The Committee's Minority report by the Australian Democrats supported the view that costs should be capable of being awarded.

Alternatively, the Labor Party Minority Report recommended that costs should not be able to awarded by the Court in discrimination matter, UNLESS the party had been frivolous or vexatious in their behaviour, in which case both party/party and solicitor/client costs could be awarded.

In terms of whether solicitors acting for a complainant should be confined to charging their client party/party costs, the Department stated that 'solicitors will be reluctant to represent parties, especially in more complex matters, if they could only charge party/party costs to their clients.' The Labor Party Minority Report supported the Majority Report's view in relation to lawyers being able to charge both solicitor/client and party/party costs.

Endnotes

2. Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee: Human Rights Legislation Amendment Bill 1996, June 1997.

3. For a more detailed discussion of these issues see Anne Twomey, 'Trimming the Tribunals: Brandy v Human Rights and Equal Opportunity Commission', Current Issues Brief No. 40 1994/5, 30 March 1995, Parliamentary Research Service.

4. In particular the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons.

5. The fact that the hearing was de novo was clarified in the High Court case of Aldridge v Booth (1988) 80 ALR 1.

6. For example, in Aldridge v Booth, a woman complaining of sex discrimination was unable to have the matter resolved by conciliation, and after an inquiry by the Commission was awarded $7,000 damages. The respondent refused to pay. The complainant received legal aid and initiated proceedings in the Federal Court, and one year later, after a seven day trial, was awarded the identical sum of money by the Federal Court. However, the respondent still refused to pay on the grounds that he was impecunious and the woman could not afford to pursue the matter further. The former Member for Kennedy, Mr Rob Hulls MP, publicly noted that '[t]o my mind, the whole process is an abuse of human rights'. See academic and judicial comments noted in the Report of the Senate Standing Committee on Legal and Constitutional Affairs, Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner, November 1992, pp. 8 - 12.

7. Ibid.

8. Second Reading Speech, Sex Discrimination and Other Legislation Amendment Bill, House of Representatives, 3 November 1992.

9. (1995) EOC 2 - 662.

10. Human Rights Legislation Amendment Act 1995 (Cwlth).

11. See Ruth Treyde, 'Enforcing Human Rights: The Response to Brandy', (1996) 7 Public Law Review, p. 15.

12. The Federal Court was considered a suitable location for the judicial consideration of anti-discrimination matters due to the breadth of its jurisdiction. The creation of a new Federal Human Rights Court was considered, however the Committee believed that this would be an inefficient exercise given the relatively small amount of human rights cases litigated. The Family Court and the Industrial Relations Court were also considered as options, however, as they both have a more specialist jurisdiction then the Federal Court, they were considered inappropriate.

13. Attorney-General Michael Lavarch MP, 'Human Rights and Equal Opportunity Commission Overhaul', Press Release, 28 January 1995.

14. Sean Brennan, 'Legal Aid and Family Services', 1998-99 Budget Review, Department of the Parliamentary Library, 1998.

15. Senate Legal and Constitutional References Committee, Inquiry into the Australian Legal Aid System, Third Report, June 1998.

16. The amendments in the Workplace Relations Act 1996 provides, among other things, that judicial registrars must have at least 5 years experience as a legal practitioner; are eligible for reappointment; and are not subject to direction or control when exercising powers delegated to them.

17. The use of judicial registrars in a manner which does not offend the doctrine of the separation of powers is generally spelt out in the High Court case of Harris v Calladine (1991) 172 CLR, 84-166. The case states that the Parliament can authorise the delegation of power to judicial registrars so long as the judges remain in control over what can be delegated, fulfil the primary function of acting judicially and therefore have effective control over the Court. If the exercise of delegated powers is subject to review on the law and facts, or de novo, it is argued that this does not contravene the separation of powers.

18. Ibid.

19. Gibson v Bosmac Pty Ltd (1995) 60 Industrial Reports 1.

20. See Federal Court Rules, O. 9 and O. 45.

21. In the 1995-96 financial year, 50% of applications to the Attorney-General received financial assistance.

22. For example, see Federal Court of Australia Regulations, Regulation 2AA (2)(g) provides, inter alia, for waiver of setting down fees if a person is on social security benefits, is an Austudy or Abstudy recipient, or is under 18 years old.

23. Human Rights and Equal Opportunity Commission, Press Release, 7 August 1996.

24. Senate Legal and Constitutional Legislation Committee, op. cit., p. 17.

25. Labor Party Minority Report, p. 5

26. Senate Legal and Constitutional Legislation Committee, op. cit., p. 21.

27. Ibid., p. 21.

28. Sections 106A-106F.

29. Sections 25ZD-25ZI.

30. Sections 84A-84F.

31. Senate Legal and Constitutional Legislation Committee, op. cit., p. 23.

32. Ibid.

33. Ibid.

34. Labor Party Minority Report, p. 8.

35. Tropical Shine Holdings Pty Ltd trading as KC Country v Lake Gesture Pty Ltd (1993) 118 ALR 510.

36. It should be noted that Order 43 of the Federal Court Rules enables a person with a mental disability to be represented by a committee or by a next friend, who would therefore be deemed to have a 'sufficient interest'.

37. Senate Legal and Constitutional Legislation Committee, op. cit., p.27.

38. Ibid., pp. 32-33.

39. Ibid., p. 43.

40. (1991) 172 CLR, 84-166.

41. Ibid., p. 47.

42. Ibid., p. 54-55.

43. Access to Justice: An Action Plan, Access to Justice Advisory Committee, 1994.

44. Ibid., p. 60.

45. Ibid.

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17 February 1999
Bills Digest Service
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