MINORITY REPORT by Senator Jim McKiernan
Introduction
1.1 The Human Rights Legislation Amendment Bill (No. 2) 1998 represents
a further attack by the Howard Government on the human rights of ordinary
Australians.
1.2 It forms just one part of a series of actions being undertaken by
the Howard Government that are depriving many hundreds of thousands of
Australians of the right to access justice and to hold their government
accountable.
1.3 This Government has done this by making cuts to a wide variety of
justice related services. These include cuts to legal aid, the federal
courts and tribunals and the family services program. The Government has
also increased fees for federal courts and tribunals and is considering
limiting the rights of Australians to hold their government accountable
through the Commonwealth's administrative law system.
1.4 In total the Howard Government will have, from its election to the
turn of the century, cut more than $400 million from services that help
Australians access justice.
Cuts to the Human Rights and Equal Opportunity Commission
1.5 Foremost amongst the cuts to access to justice measures are the Government's
cuts to the Human Rights and Equal Opportunity Commission.
1.6 The Government has reduced funding for the Commission from the $21.6
million provided in the 1995-96 financial year, to the $20.5 million provided
in the 1996-97 financial year, to the $18.2 million provided in the 1997-98
year, to $12.3 million provided in 1998-99 and to an average of only $10.6
million over each of the 3 outyears.
1.7 Once completed, the cuts implemented by this Government will mean
that, in real terms, the budget of the Commission has been cut by an average
of a staggering $13 million per year or 55 percent. In total, over the
6 years budgeted by the Howard Government, it will spend a staggering
$57 million less in real terms on the Commission than if 1995/96 funding
levels had been maintained.
1.8 Despite the fact that the cuts announced by the Government were not
meant to take full effect until July 1998, the Commission was forced,
for budgetary reasons, to implement the cuts with effect from 1 January
1998. This was because the Government failed to provide the Commission
with ancillary funding to meet the inevitable costs that would flow from
redundancy packages.
1.9 As a result of the cuts, the Commission has been forced to sack approximately
60 of its 180 staff. As a result, $0.5 million dollars a year of its now
reduced budget is being wasted on vacant unused office space in its Sydney
Office in Castlereagh Street, Sydney.
1.10 The effect of these cuts has been devastating. The Commission has
effectively been forced to abandon the great bulk of its ongoing inquiry
work and instead has been forced to meet it essential statutory obligations
to conciliate complaints.
1.11 The actual effect of these cuts is completely at odds with the Government's
claims. The Acting Attorney-General, the Hon. Phillip Ruddock MP stated
in a Media Release dated 9 June 1997 that:
Reports in the media today contain incorrect claims that changes to
the Human Rights and Equal Opportunity Commission (HREOC) will have
a negative impact on disabled people.
1.12 However, the Human Rights Commissioner Mr Sidoti, who is now the
acting Disability Discrimination Commissioner as well, confirmed in evidence
to a Senate Estimates Committee that the services provided by the Disability
Discrimination Commissioner would be amongst those to be affected by the
cuts. Indeed, half the staff formerly employed to assist the Disability
Discrimination Commissioner has been sacked.
1.13 The Government's deceit in not telling some of the most disadvantaged
in our community of the real effect of these cuts is simply deplorable
and should be condemned by all in our community.
1.14 But the coalition's attack on the Commission's budget began at the
time of the 1996 election.
1.15 Generally, the Coalition promised that Labor's access to justice
measures, including the Human Rights and Equal Opportunities Commission,
would have their budgets either matched or extended.
1.16 A specific exception was noted for the Commission. In its election
promises, the Government originally projected a cut of $1.5 million per
year in the 1996-97 Budget to transfer the hearing function from the Commission
to the Federal Court of Australia. This cut has been delayed pending the
passage of the Human Rights Legislation Amendment Bill 1998 (formerly
the Human Rights Legislation Amendment Bill (No. 1) 1996) [`the No.
1 Bill'].
1.17 However, even this cut was unjustified. The Senate Estimates Committee
was told that the true cost to the Commission for the provision of the
hearing function is only $600,000 per year. Despite this evidence, the
Government has persisted with the implementation of this cut purely on
the basis that it got the figure wrong in the Coalition's Law and Justice
Policy released during the 1996 Federal election, by Senator Vanstone.
The Fightback! Agenda
1.18 In reality, what the Government has done is to implement its discredited
Fightback! agenda on human rights. As part of that package, in
November 1991, the Coalition promised to cut the budget of the Human Rights
and Equal Opportunity Commission.
1.19 However, those cuts were abandoned in the wake of the 1993 election
defeat because of strong community opposition. However, they have re-emerged
in this Government's agenda to attack institutions that play an important
role in ensuring a fair and decent Australia.
Human Rights Legislation Amendment Bill (No. 1) 1996
1.20 This Bill, of course sits alongside the Human Rights Legislation
Amendment Bill 1998, a Bill that, while implementing changes necessary
as a result of the High Court's Brandy decision, also implements
a variety of measures that will deprive most Australians of any real ability
to enforce their human rights.
1.21 Details of the Labor Party's concerns are set out in the Committee's
report on the No. 1 Bill dated June 1997.
Cuts to Legal Aid
1.22 But the Government's attacks on human rights do not end there.
1.23 The decision announced by the Government to cut $120 million over
3 years from legal aid funding and thereby to dismantle Australia's national
unified legal aid system is also having a profound effect on the ability
of Australians to enforce their human rights. This is particularly the
case as, in accordance with the provisions of the No. 1 Bill, discrimination
law disputes will now be determined in the Federal Court of Australia.
1.24 A more detailed discussion of the effect of the cuts to legal aid
funding as contained in the Senate Legal and Constitutional References
Committee's First, Second and Third Reports on Australia's Legal Aid System.
1.25 However, there are two points that are worthy of immediate comment.
1.26 First, the legal aid cuts, over the 6 years budgeted by this Government,
now represent a $231 million cut in legal aid funding in real terms. Each
year, the Howard Government is spending $46.5 million less in real terms
on legal aid funding than if 1995/96 funding levels and expenditure commitments
had been maintained.
1.27 Secondly, the Commonwealth-State legal aid agreements, which came
into effect on 1 July 1997, contain the following Guideline with respect
to the funding of equal opportunity and discrimination cases:
5.1 The Commission may grant assistance for equal opportunity/discrimination
cases where there are strong prospects of substantial benefit being
gained not only by the applicant but also by the public or any section
of the public.
1.28 Such a Guideline is totally unacceptable because it unfairly excludes
people suffering from discrimination from access to legal assistance.
The Guideline achieves this effect by providing a number of additional
qualifications to the standard merits and financial hardship tests that
an applicant is required to demonstrate. In particular, applicants must
show that:
c) benefit will be acquired not only by the individual bringing the
complaint but also that the claim must serve a broader public interest
or otherwise be in the interest of section of the public.
These additional requirements have been arbitrarily imposed by the Howard
Government. Other civil litigants are not required to satisfy similar
criteria in order to access legal aid.
1.29 These additional requirements will effectively exclude large numbers
of people adversely affected by discrimination from access to legal aid
– and therefore will deny most of them of the ability to protect
their fundamental human rights.
1.30 Finally, these additional requirements are simply unacceptable as
a matter of principle. The Labor Party believes that the creation of equality
of opportunity and the elimination of discrimination are matters which
derive substantial benefits not only to individual complainants but also
to both the class of persons to which that complainant belongs and to
the community as a whole.
1.31 Accordingly, the Labor Party believes that tests (a), (b) and (c)
above are either redundant or, to the extent that they impose some higher
standard on applicants for legal aid, are in breach of both the moral
and international legal obligations owed by the Australian Government.
Labor opposes this Guideline.
The Legislation
1.32 The current Bill implements the Government's foreshadowed reforms
to the Human Rights and Equal Opportunity Commission.
1.33 In particular, the Bill:
a) renames the Commission as the Human Rights and Responsibilities
Commission;
b) re-structures the Commission to replace the specialist Commissioners
with a President and 3 Deputy Presidents;
c) allegedly re-focuses the objectives of the Commission to make education,
dissemination of information on human rights and assistance to business
and the general community the focus of the Commission's functions;
d) requires the Commission to seek the leave of the Attorney-General
before engaging in litigation;
e) removes the advisory committees to the Commission;
f) prohibits the President from delegating the complaint handling function
to the more specialised Deputy Commissioners;
g) removes the power of the Commission to recommend damages;
h) removes the barrier to appointing a person as a member of the Commission
who is over 65 years of age;
i) abolishes the position of the Aboriginal and Torres Strait Islander
Social Justice Commissioner;
j) abolishes the position of Race Discrimination Commissioner and the
Community Relations Council; and
k) establishes a separate office of the Privacy Commissioner.
1.34 Despite the Government's claim that the new structure will make
the Commission more efficient, the Explanatory Memorandum to the Bill
states that it has no financial impact.
1.35 Indeed, as even the most recent round of Estimates Hearings indicates
the Government still has not got any idea of how much it will cost to
establish the new separate Office of the Privacy Commissioner.
Structure of the Commission
1.36 The vast majority of these amendments implement an entirely new
structure for the Commission. In doing so, they remove the positions of
the specialist Commissioners whose expertise is vital in the determination
and investigation of human rights matters. They also reduce the flexibility
of the Commission to engage in the complaint handling function. It follows
that the Labor Party opposes these amendments.
Purpose of the Commission – Education
1.37 In his Second Reading Speech, the Attorney-General claimed that
this Bill represents a fundamental cultural change for the Human Rights
and Equal Opportunities Commission. He claimed that the Bill would make
education the Commission's new priority. He also claimed that the Bill
would enhance the Commission's role in assisting business.
1.38 But the reality of the Howard Government's human rights policy is
vastly different to that.
1.39 It is well known that the Coalition has a historic hostility to
the ability of individual Australians to enforce human rights. Instead,
it has sought to rely on the amorphous sense that education will make
sure that people treat each other with the respect they deserve.
1.40 While education plays an important role in developing greater compliance
with our human rights obligations, such mechanisms do not provide immediate
protection for individuals from, or give them redress about, breaches
of their human rights. Nor do they provide adequate ongoing independent
scrutiny of compliance with Australia's international legal obligations
in respect of human rights.
1.41 What the Howard Government fails to understand is that an effective
and well resourced complaint handling and inquiry process is central to
the development of a healthy human rights culture in Australia. It does
so through highlighting individual examples or the plight of groups of
people within our society whom are living with, or who may face, discrimination
as a result of government policy or private action.
1.42 The personalising of these problems is one of the most effective
means to educate people about human rights. In recent years, there have
been numerous examples of decisions or reports by the Commission that
incited public interest and debate.
1.43 Secondly, the Government's argument assumes that these reforms will
enhance the ability of the Commission to educate the public about human
rights matters. The reality is that this Government's budget cuts to the
Commission have actually reduced the ability of the Commission to engage
in public education and awareness campaigns.
1.44 In 1995/96, the Commission spent almost $595,000 in real terms,
not including salary and administrative expenses, on community and public
education campaigns. The 1996/97 budget cuts reduced that amount to $539,000.
This year it was reduced to $425,000. In total the Commission's education
budget has been cut by 28.5 percent.
1.45 In related campaigns, the Government's promised anti-racism education
campaign is still in the process of being established – over 3 years
after it was promised and over 2 years since the rise of the former Member
for Oxley. The campaign, which was originally meant to be over 2 year
and cost $10 million, was cut in 1996/97 budget to a 1 year $5 million
campaign, then in 1997/98 to a 1 year $4.5 million campaign and then was
not even funded in the 1998/99 budget at all.
1.46 Instead of educating Australians, the attitude survey undertaken
by the Government for the purposes of that campaign was little more than
push-polling, which peddled racially discriminatory stereotypes.
1.47 The reality is that this Government has little commitment to educating
Australians about the need to respect each other's human rights. The proposed
amendment is nothing more than a hypocritical sham being perpetrated by
this Government to justify its attempts to emasculate an agency it has
always opposed.
1.48 This Government would rather play “wedge” politics through
its highly divisive attacks on native title, Aboriginal welfare and the
rights of migrants.
1.49 The Commission already has as one of its functions the education
of Australians about their human rights. Rather than make empty gestures
as to the role of the Commission, the Howard Government should provide
additional funding for the Commission's educative role.
1.50 The Labor Party cannot support this amendment in the absence of
any genuine commitment by the Howard Government to educating Australians
about their human rights.
Attorney-General's Supervision of the Ability of the Commission to Engage
in Litigation
1.51 Consistent with its antipathy towards the Human Rights & Equal
Opportunities Commission, the Howard Government has taken the unprecedented
step of seeking to remove its independent discretion to engage in litigation.
1.52 No similar control has been placed on any other similar independent
agency.
1.53 This provision is fundamentally objectionable and exposes the Government's
agenda for what it truly is.
1.54 Nor was the amendment supported by any evidence that the Commission
had misused its power of intervention in the past.
1.55 The amendment was opposed by all submissions to the Committee.
1.56 Accordingly, the Labor Party opposes this amendment as an improper
attack on the independence of the Commission.
1.57 I welcome the conclusion of the Coalition members of the Committee
that this provision should be deleted.
Loss of the Specialist Commissioners
1.58 The replacement of the specialist Commissioners by 3 Deputy Presidents
was widely criticised by the submissions to the Committee.
1.59 The overwhelming weight of evidence provided to the Committee criticised
the Government's failure to understand the important symbolic role of
the specialist Commissioners and accused the Government of taking an unnecessarily
restrictive managerial view of their role.
1.60 The Governments view on the specialist Commissioners is completely
inconsistent with the direction of its proposed reforms to the Privacy
Commissioner where the Government is proposing reforms that increase managerial
inefficiency in order to increase the public profile of the Privacy Commissioner.
1.61 The Human Rights Commission, in its 1997-98 Annual Report, set out
the particular reasons why the office of the Aboriginal and Torres Strait
Islander Social Justice Commissioner and the Disability Discrimination
Commissioner should be retained.
1.62 The Acting Aboriginal and Torres Strait Islander Social Justice
Commissioner, Ms Zita Antonios, criticised the Government's moves to abolish
that office:
I believe unequivocally that the office of Aboriginal and Torres Strait
Islander Social Justice Commissioner should be held by an indigenous
person. It is only in the absence of such an appointment and with the
support of Mick [Dodson] and other Indigenous people that I have taken
up the position in order to keep the office alive and active at this
time of particular need. [page 80]
1.63 The Acting Disability Discrimination Commissioner, Mr Chris Sidoti,
criticised the Government's moves to abolish that office:
The loss of a specialist position devoted solely to disability discrimination
issues comes only five years after the enactment of the Disability Discrimination
Act 1992 and the establishment of the position. Much has been accomplished
during those five years but equality for Australians with a disability
remains at best unfinished. The case for maintaining the specialist
position remains compelling. [page 89]
1.64 Indeed, a number of submissions argued for an increase in the number
of specialist Commissioners. In particular, a strong case was put for
the creation of a specialist children's commissioner.
1.65 In light of the overwhelming evidence favouring the retention of
the specialist commissioners, the Labor Party does not support the proposed
re-structure of the Commission.
Lack of Transitional Arrangements for the Existing Commissioners
1.66 Obviously, transitional provisions ensuring the continuity of the
appointment of the current specialist commissioners are not required if
the Government's changes are not implemented. However, the Labor Party
is concerned that the lack of transitional arrangements in the context
of this Bill is a further attempt by the Howard Government to compromise
the independence of the Commission.
1.67 In particular, Labor believes that the failure to provide transitional
arrangements breaches the Paris Principles on National Human Rights
Institutions. The Paris Principles state:
In order to ensure a stable mandate for the members of the national
institution, without which there can be no real independence, their
appointment shall be effected by an official act which shall establish
the specific duration of the mandate.
1.68 Australia has argued internationally that the Paris Principles represent
a non-negotiable benchmark by which human rights institutions should be
judged. If we are not to be hypocritical, Australia should impose the
same standard on itself.
1.69 The Labor Party welcomes and supports the call by the Coalition
members of the Committee for transitional arrangements to be inserted
into the Bill.
Separate Office of the Privacy Commissioner
1.70 The Bill undertakes the first moves towards the separation of the
Office of the Privacy Commissioner from the Human Rights and Equal Opportunity
Commission. That task is completed in the Privacy Amendment (Office
of the Privacy Commissioner) Bill 1998 that creates an independent
statutory Office of the Privacy Commissioner.
1.71 As the Attorney-General noted in his Second Reading Speech on the
Privacy Amendment (Office of the Privacy Commissioner) Bill 1998:
This Bill will not change any of the Privacy Commissioner's functions
and the Privacy Commissioner will continue to have involvement with
both the public and private sectors.
1.72 The Government claims that its rationale for the Bill is as follows:
The establishment of a separate office provides an opportunity to further
increase the profile, and thus the effectiveness, of the work of the
Privacy Commissioner and of the office of the Privacy Commissioner.
1.73 The changes proposed by the Bill are expected to have no significant
financial effect.
1.74 The Government argues that the Privacy Commissioner has always operated
somewhat independently from the other Commissioners and also brings Australia
into accord with some international practice.
1.75 While there may be some benefit to be gained from the separation
of the Office of the Privacy Commissioner in terms of enhanced public
profile, any such gain is marginal at best. The Privacy Commissioner already
enjoys considerable status in the community – and the most recent
Privacy Commissioner, Ms Moira Scollay, was most effective in bringing
the activities of her office to the public's attention.
1.76 The Privacy Commissioner, quite apart from his or her responsibilities
to report through the Commission's Annual Report, also reports to the
Parliament, and through it to the Australian people, on the operation
of the Privacy Act 1998.
1.77 It is difficult to see any constraint on the Commission's present
functions that would be alleviated by the passage of this Bill.
1.78 Of greater effect would be an increase in the Budget of both the
Commission and the Privacy Commissioner.
1.79 The Government's cuts to the Commission have already been explained.
These cuts have affected all the operations of the Commission, including
those of the Privacy Commissioner.
1.80 For example, the number of audits of government departments and
agencies conducted by the Privacy Commissioner dropped from 34 in 1996/97
to just 7 in 1997/98. Due to re-organisation within the Office of the
Privacy Commissioner it is hoped that this number can be increased to
20 per year. However, only 12 audits have been commenced so far this financial
year.
1.81 As a result, the Howard Government's cuts have had an immediate
and direct impact on the ability of the Privacy Commissioner to protect
the right to privacy that is enjoyed by all Australians.
1.82 If the Government were genuinely serious about increasing the profile
of the Privacy Commissioner then they would provide him or her with the
additional resources needed to carry out not only the inquiry and public
consultation functions, but also increase funding for community education
purposes. Yet all of these resources have been cut.
1.83 It could also be argued, at a more philosophical level, that a separation
of the Privacy Commissioner of the Commission fails to see privacy as
being, in part, a human rights issue.
1.84 Whilst no significant financial impact is expected from the passage
of this Bill, the Commission and the Privacy Commissioner will have co-located
offices and the Commissioner will purchase various support functions (ie.
payroll, human resources management etc.) from the Commission. This will
increase internal accounting costs even if only marginally.
1.85 The Commissioner will require the Commission to provide desk front
services in most jurisdictions as the Commissioner will simply be unable
to provide these services herself. Indeed, because of funding shortages,
the Commission itself is unable to provide these services in all jurisdictions
at present.
1.86 Only one of the submissions to the Inquiry addressed this issue.
The Commission itself indicated only that it “did not oppose”
the change. Accordingly, it is difficult to see any community support
or demand for this amendment.
1.87 In conclusion, the Labor Party believes that inefficiency of service
delivery will be increased by the separation of the Privacy Commissioner
from the Commission. There is no evidence that the current arrangement
impedes the activity of either, indeed some administrative efficiencies
and service delivery benefits flow from their joint operation.
1.88 Put simply, the Government has failed to make out any case for change.
1.89 As a result, the Labor Party opposes this aspect of the Bill. We
will also oppose the Privacy Amendment (Office of the Privacy Commissioner)
Bill 1998.
Creation of Guidelines
1.90 The submission by the Combined Community Legal Centres' Group (NSW),
which was supported by a number of other submissions, noted that guidelines:
... could play an important role in providing the community with information
and assistance on strategies for compliance.
1.91 However, the submission noted the conflicting opinions of the Commission
and the Federal Office of Regulation Review as to their status. The Commission
argues that such guidelines are “no more than a policy interpretation
of the application of the law”. The Office regards the guidelines
as “at least quasi-regulatory” in nature thus requiring
“the development of Regulatory Impact Statements”.
1.92 The submission also noted that it was unclear whether hearing Commissioners
would need to take these guidelines into account.
1.93 As the submission rightly pointed out:
While such differing opinions remain about the status of guidelines,
they will do little to assure people and organisations that following
the guidelines will be an effective way to achieve compliance with the
law and avoid allegations of discrimination.
1.94 The Labor Party believes these concerns are valid and need to be
addressed by the Government.
1.95 However, we nonetheless regard the development of these guidelines
as valuable. Accordingly, the Labor Party will move these amendments in
the context of the No. 1 Bill to ensure they are implemented.
Renaming the Commission
1.96 There was strong opposition in the submissions to the Committee
to the re-naming of the Commission as the Human Rights and Responsibilities
Commission. In particular, there was concern about the lack of clarity
about the intended purpose of the change.
1.97 For example, the Women's Electoral Lobby noted that the name change:
... could lead to assumptions that claims of human rights violations
are made by those who are irresponsible, rather than those who are suffering
disadvantage.
1.98 Professor Hilary Charlesworth argued:
... it is important to note that many of the rights protected under
the HREOC Act are most regularly violated by governments. We are concerned
that the change in name deflects attention from the legal obligations
(responsibilities) on governments to protect human rights.
1.99 Further, Professor Charlesworth noted that the name change:
... may be seen as implicit support for the Declaration [Universal
Declaration of Human Responsibilities].
Professor Charlesworth noted that the Declaration, which, de-emphasises
rights and emphasises the importance of communal responsibilities, is
not currently supported by the Australian government.
1.100 Accordingly, re-naming the Commission:
... by its implied de-emphasis of the priority to protect human rights
– would be detrimental to the enormously positive steps the Australian
government has made in terms of supporting the National Human Rights
Institutions project of the United Nations, including direct support
for such institutions as the Indonesian Human Rights Commission, and
the newly created centre for Democratic Institutions.
1.101 No submission supported the change of name of the Commission. Indeed,
the Commission itself argued that a more appropriate name would be to
simply call the Commission – `the Human Rights Commission'.
1.102 The Women's Legal Service also opposed the removal of the words
`Equal Opportunity' from the title as de-emphasising the important role
of the Commission in promoting both equality and equality of opportunity.
1.103 In conclusion, the Government's suggested name change appears not
to have been well thought out and to be inconsistent with community opinion.
The name change will also create confusion both domestically and internationally
about the proper role and function of the Commission. This is not desirable.
1.104 The change also appears to have been proposed without adequate
community consultation. The Labor Party believes that such consultation
should occur before any change is considered by the Parliament. Accordingly,
the Labor Party opposes this change.
Abolition of the Community Relations Council and Advisory Committees
1.105 The Community Relations Council, established under the Racial
Discrimination Act, has never had any members appointed to it.
1.106 Advisory Committees to the Commission have rarely been utilised.
1.107 A National Advisory Committee on Discrimination on Employment and
Occupation [`the NAC'] currently exists. The NAC includes representatives
of key organisations including the Business Council of Australia, the
Australian Chamber of Commerce and Industry, the Australian Council of
Trade Unions, representatives of States and Territory governments and
other community organisations.
1.108 The Government appears not to have consulted with the NAC prior
to proposing its abolition. The Government should do so.
1.109 The mere fact that the Council and the Committees have not been
used does not justify a decision to remove the ability to establish such
bodies in future. Leaving such a facility in place only increases the
flexibility of future responses to issues as and when they arise.
1.110 There is no evidence that the facility for these bodies in any
way inhibits the current operations of the Commission. In particular,
it is noted that informal advisory committees have been established from
time to time despite the existence of the ability to establish more formal
structures.
1.111 In particular, abolition of the Community Relations Council at
a time of increased community concern about the level of racially discriminatory
conduct or sentiment in Australia sends an inappropriate message to both
the domestic and international communities.
1.112 Accordingly, the Labor Party opposes these changes.
Prohibition on the Delegation of the President's Complaint Handling
Powers
1.113 The Labor Party opposed this proposition in the amendments to the
No. 1 Bill. That opposition remains.
1.114 The Labor Party believes that the specialist Commissioners should
continue to have the conduct of the conciliation of disputes. We believe
that, because of their particular expertise, specialist Commissioners
are in the best position to understand the requirements needed for the
conciliation of a particular type of dispute.
1.115 The argument advanced by the Government for the centralisation
of the conciliation process in the hands of an executive President of
the Commission ignores the need for different types of disputes to be
conciliated in different ways.
1.116 The suggestion that such centralisation produces efficiency ignores
the fact that if complaints are not handled in the most appropriate manner
then they will be less likely to be successfully conciliated and therefore
more likely to proceed for determination by the Federal Court. Accordingly,
we believe that the Government's arguments based on efficiency represent
a false economy.
1.117 The Labor Party believes that the conciliation function will operate
most effectively when it is under the control of a specialist Commissioner
with the requisite experience in handling complaints of that type. Specialist
Commissioners can also bring their growing body of experience, obtained
through the exercise of his or her inquiry functions, to the conciliation
function thereby constantly improving the process.
Removal of the Commission's Power to Recommend Damages or Compensation
1.118 The Bill also undermines the power of the Commission to recommend
damages.
1.119 A number of submissions opposed this amendment as removing from
the Commission an important symbolic role.
1.120 This provision pre-empts debate on a Labor Party amendment to the
No. 1 Bill which will allow the Commission to continue to be able to make
binding determinations affecting Commonwealth departments and agencies.
The Labor Party opposes that amendment for this reason.
Appointment and Terms of Persons over the Age of 65
1.121 Finally, the Bill removes an inappropriate age discrimination provision
in the legislation relating to appointments. Consistent with Labor Party
policy we support this provision.
1.122 However, amending the Bill, so as to pass this clause, seems rather
pointless.
1.123 Accordingly, the Labor Party will not support this clause in this
context. Instead, the Labor Party will move an identical amendment in
the context of debate in the Senate on the No. 1 Bill.
Conclusion
1.124 In general, the Labor Party opposes this Bill.
1.125 This Bill is nothing more than a deception on the people of Australia.
Contrary to the Attorney's Second Reading Speech, this Bill is not about
a more efficient Commission focussed on the delivery of community education
about discrimination. Rather, it is a further attack on an internationally
admired institution. An institution used as a model by others in establishing
their own human rights bodies.
1.126 This Bill is a further representation of the antipathy this Government
feels towards protecting the rights of ordinary Australians. As such it
should be opposed.
1.127 The Howard Government needs to undertake a comprehensive re-evaluation
of its policies on human rights issues. Its policies are seriously out
of step with the community.
1.128 Rather than restricting and reducing the ability of Australians
to hold government accountable and to enforce and protect their rights,
the Howard Government should recognise the need to develop a broader appreciation
of human rights. As the Human Rights Commissioner, Mr Chris Sidoti, stated
at page 103 of the Commission's 1997/98 Annual Report:
Our experience, however, establishes the urgent need for comprehensive
coverage of discrimination issues in federal legislation. Grounds such
as age, sexual orientation, trade union activity, criminal record and
religious and political opinion require the same kind of effective legislation
as sex, race and disability grounds.
Senator Jim McKiernan
Senator for Western Australia
17 February 1999