Chapter 1
Background
Referral of the bill
1.1 On 14 May 1998, following a recommendation by the Selection of Bills
Committee, the Senate referred the provisions of the Human Rights Legislation
Amendment Bill (No. 2) 1998 (the 1998 bill) to the Senate Legal
and Constitutional Legislation Committee for inquiry and report by 10
August 1998.
1.2 An interim report was presented to the President of the Senate on
10 August 1998. Before the final report of the committee could be tabled,
the 1998 Federal election was called and the committee was unable to continue
its consideration of the 1998 bill. The bill subsequently lapsed from
the Senate Notice Paper prior to the commencement of the 39th Parliament.
1.3 After the election, the provisions of the 1998 bill (that is, as
introduced in the 38th Parliament) were referred to the newly constituted
committee on 12 November 1998, for report by 1 December 1998. The reference
also provided for the committee to consider and use the records of its
predecessor committee appointed in the 38th Parliament.
Background
1.4 The 1998 bill was the second bill proposed by the government to reorganise
the Human Rights and Equal Opportunity Commission (HREOC) and to change
the focus of the commission. This bill follows on from the Human Rights
Legislation Amendment Bill 1997 (formerly known as the Human Rights Legislation
Amendment Bill 1996 – the 1997 bill).
1.5 The bills were driven by two recent developments. The first was the
High Court decision in Brandy v Human Rights and Equal Opportunity
Commission [1], which held that the mechanism
for registration and enforcement of HREOC determinations through the Federal
Court breached the doctrine of the separation of powers implicit in Chapter
III of the Constitution. The second was the tripartite review of the functions
and management of HREOC, carried out by the Attorney-General's Department,
the Department of Finance and HREOC. The review made a number of recommendations
that were given effect in the two bills.
1.6 This chapter briefly outlines the contents and status of the 1997
bill, as well as summarising the 1998 bill, and the history of this inquiry.
Human Rights Legislation Amendment Bill 1997
The 1997 bill sought to:
- centralise the administration of HREOC in the office of the president,
centralise complaints handling in that office, and make related administrative
changes; and
- amend the procedures for handling sex, race and disability discrimination
complaints so that complaints not resolved by conciliation are heard
by judges, assisted by judicial registrars, in the Federal Court –
these amendments are designed to ensure that determinations relating
to discrimination are enforceable following the Brandy case.
1.7 The provisions of the bill were referred to the Legal and Constitutional
Legislation Committee on 6 February 1997, and the committee tabled its
report on 26 June 1997 [2]. The second reading
of the bill was adjourned on 27 June 1997. It also lapsed from the Senate
Notice Paper prior to the commencement of the 39th Parliament.
Human Rights Legislation Amendment Bill (No. 2) 1998
1.8 On 8 April 1998, the Attorney-General introduced the 1998 bill into
the House of Representatives.
1.9 The bill provided for the reorganisation of the Human Rights and
Equal Opportunity Commission (“the old commission”) and its
renaming as the Human Rights and Responsibilities Commission (“the
new commission”).
The executive structure of the new commission was to consist of a president
and three deputy presidents, each of whom would also have responsibility
for one of the following grouped subject areas:
- social justice and race;
- sex discrimination and equal opportunity; and
- human rights and disability.
1.10 The bill made education, dissemination of information on human rights
and assistance to business and the general community – for example,
through the development of guidelines to assist people to comply with
their obligations under federal anti-discrimination legislation –
central functions of the new commission.
1.11 The bill also removed the Privacy Commissioner from the old commission
and created an Office of the Privacy Commissioner as a separate statutory
authority. There was no other change to the functions or powers of the
Privacy Commissioner.
1.12 The bill also sought to make the following changes:
- The Attorney-General had to approve an intervention by the new commission
in court proceedings that involve human rights or discrimination issues.
- The Community Relations Council, and the provision for the establishment
of advisory committees, were abolished.
- The president was no longer permitted to delegate his or her complaint
handling powers in respect of breaches of human rights and discrimination
in employment.
- The powers of delegation under the Disability Discrimination Act
1992 (DDA), the Racial Discrimination Act 1975 (RDA)
and the Sex Discrimination Act 1984 (SDA) were repealed.
The bill provided for their consolidation into one delegation provision
in the renamed Human Rights and Responsibilities Commission Act
1986 (“the renamed Act”).
- The new commission would not have the power to recommend the payment
of damages or compensation following inquiries into certain types of
complaints under the renamed Act.
- Persons aged over 65 years could be appointed as members of the new
commission and persons' terms could extend beyond their 65th birthday.
1.13 The bill also proposed consequential amendments to 15 other Acts.
Scope of the inquiry
1.14 When initially recommending the referral of the bill, the Selection
of Bills Committee identified the following issues for consideration:
- the impact and appropriateness of the change to the structure and
operation of the commission;
- the implications of the commission's new role on the effective delivery
of human rights to all Australians;
- the appropriateness of the removal of the specialist commissioners;
and
- the appropriateness of controls exercised by the Attorney-General
and the effect on the independence of the commission.
Conduct of the inquiry
1.15 The Chair of the then committee wrote to HREOC, relevant departments
and authorities, community organisations and individuals inviting submissions
on the bill. The committee received 24 submissions from persons and organisations
listed in Appendix 1.
1.16 The committee held public hearings on the inquiry in Sydney on 28
July and Canberra on 5 August 1998. A list of witnesses who gave evidence
appears at Appendix 2.
Evidence on the bill
1.17 Evidence on the bill fell broadly into the following categories:
- the need for the Attorney-General to approve intervention by the commission
in court proceedings (chapter 2);
- the reorganisation of the commission's executive structure and the
replacement of commissioners with deputy presidents, and the creation
of a separate Office of the Privacy Commissioner (chapter 3);
- the new central functions of education, dissemination of information
and assistance to business and the community, including the creation
of guidelines (chapter 4); and
- other issues: the renaming of the commission; the abolition of the
Community Relations Council and advisory committees; the prohibition
on the president's delegation of his or her complaint making power in
respect of breaches of human rights and discrimination in employment;
and the removal of the commission's power to recommend damages or compensation
(chapter 5).
Recommendation No. 1:
If the 1998 bill is reintroduced in the 39th Parliament, in substantially
the same form as it was introduced in the 38th Parliament, the committee
recommends that the Senate agree to the new bill, subject to the
amendments recommended in chapters 2 to 5 of this report.
Footnotes
[1] 183 C.L.R. 245
[2] Senate Legal and Constitutional Legislation
Committee, Report on the Human Rights Legislation Amendment Bill 1996.