Australian Democrats Minority Report on the Human Rights Legislation
Amendment Bill (NO. 2) 1998
(As introduced in the 38th Parliament)
1.1 The Australian Democrats believe that equity and social justice considerations
should be the key considerations when considering changes which affect
individuals' access to justice.
1.2 We do not believe the Government has the same commitment. This legislative
proposal to change the way in which the Human Rights and Equal Opportunity
Commission operates comes after a devastating 43 percent budget cut. The
Human Rights and Equal Opportunity Commission cannot be allowed to be
emasculated into banality or neutered politically – just because
the government of the day, or particular lobby groups do not like what
the Commission does, or the decisions it makes, or the fact that part
of its raison d'etre is to critique government policy. We do not
agree that the legislation, as proposed, will create a more efficient,
effective and `user friendly' human rights commission unless specialist
commissioners are retained to deal with discrimination on the basis of
sex, race and disability. We also need to ensure that the Human Rights
and Equal Opportunity Commission and the Act under which it operates,
empowers it to continue to operate within its obligations under international
human rights instruments, and that it be appropriately resourced to do
so.
Specialist Commissioners
1.3 This Bill seeks to amend the power and functions of the President
and Commissioners of the Human Rights and Equal Opportunity Commission
and introduces administrative procedures by a tripartite review of the
Commission's functions. It also seeks to ensure that the determinations
relating to discrimination under the Racial Discrimination Act, Sex Discrimination
Act and the Disability Discrimination Act can be enforced, in response
to the High Court decision in Brandy vs HREOC.
1.4 The Sex, Race and Disability Discrimination Commissioners have been
responsible for the day to day handling of complaints under their respective
legislation and have been responsible for conciliating such complaints.
The Bill introduces uniform procedures for handling complaints under the
three discrimination Acts, and all conciliation and inquiry functions
become the jurisdiction of the President rather than the individual Commissioners.
1.5 The three Commissioners will therefore have their role of investigating
and conciliating relevant complaints removed to the President and given
instead, an amicus curiae function in the Federal Court.
1.6 However, one person cannot be sufficiently knowledgable and familiar
with the complexities of race, sex and disability complaints, of that
which seems to be envisaged in the Government's standardised conciliation
process.
1.7 The Australian Democrats do support the position of a full time President
to act as a Chief Executive Officer with responsibility for staffing,
finance and complaint handling. However, HREOC should retain the individual,
specialist Commissioners to handle complaints and provide specialist policy
advice and assistance in carrying out the functions of the Commission
in the areas of human rights, race, sex and disability discrimination,
and in Aboriginal and Torres Strait Islander social justice issues.
1.8 We therefore recommend that the President should not maintain control
of the complaint handling process, but should be empowered to delegate
complaint handling powers in the areas of sex, race, and disability discrimination
to members of the Commission, namely the specialist Commissioners.
1.9 The most critical factor in complaint handling is that the process
should operate effectively, efficiently and in the best interests of all
parties to the complaint. It is also true that outcomes provide a public
interest in upholding human rights standards under international law.
HREOC needs to continue to be an effective human rights institution in
Australia.
Notification of Matters in Federal Court
1.10 Any proceeding commenced in the Federal Court should be notified
to a specialist Commissioner. This is the only way for the Court to deal
effectively with discrimination matters, and for the interests of all
parties to be taken into consideration.
1.11 The Democrats recommend that the Human Rights and Equal Opportunity
Commission retain its general power to intervene in human rights issues.
1.12 The Australian Democrats strenuously oppose the removal of the Commission's
independent discretion to engage in litigation. This is an objectionable
attack on the independence and role of the Commission.
Court Fees and Costs
1.13 We understand the need, in the context of the Brandy case, to reform
the process surrounding determinations. However, the Democrat's primary
concern is for access and equity in the administration of human rights
law. We therefore express the desirability that human rights cases not
be subject to the usual regime regarding costs and that Court processes
be as accessible as possible. We prepose that only a nominal filing fee
applies for discrimination and human rights complaint cases.
1.14 We also recommend that the proposed provisions on the application
of rules of evidence be removed and amended to ensure that rules of evidence
do not apply to discrimination cases. The Court process should acknowledge
the nature of complaints in human rights or discrimination matters. Complainants
often find the process of making a complaint difficult. An informal and
low cost process makes it viable for them to make a complaint.
1.15 To acknowledge this, the Democrats are also of the opinion that
the Bill should prevent costs being awarded against a party in discrimination
cases. Party to party costs should be the only costs applicable in human
rights/discrimination cases, and solicitor–client costs should be
prohibited.
1.16 The Human Rights and Equal Opportunity Commission submitted that
they remain concerned that the prospect of an award of legal costs against
a complainant may deter complainants from bringing their cases to the
Court and will inevitably result in a more formal and less “user
friendly” process than the present system. The Democrats share this
concern.
1.17 The Human Rights and Equal Opportunity Commission have also noted,
however, that the cost regime may have some beneficial effect:
- Increased opportunity for parties to be legally represented at the
outset;
- Legal fees become part of an award, rather than being taken out of
general damages;
- Better preparation and handling of complex matters;
- Protection of respondents from unnecessary costs defending trivial
matters; and
- Control of vexatious and improper litigious tactics.
1.18 The Federal Court regulations allow the Court to waive filing, setting
down and hearing fees in cases of financial hardship and certain types
of matters. This should be extended to include human rights and discrimination
matters.
1.19 Procedures to the Court are to be made as “user friendly”
as possible.
Role of Commissioner as friends of the Court
1.20 We agree with the position of the Human Rights and Equal Opportunity
Commission, that complainants who commence litigation in the Federal Court
notify the relevant Commissioner of those proceedings. We would also assert
that there be an amendment to prevent a specialist Commissioner (or Deputy
President) from appearing as an amicus curiae if that specialist
Commissioner (or Deputy President) were to conciliate a dispute. An amendment
should also be made to entitle another Commissioner (or Deputy President)
to appear to assist the Federal Court if the initial Commissioner (or
Deputy President) were to conciliate a dispute. Specialist commissioners
should also be empowered to initiate proceedings in the Federal Court
as a complainant.
Reporting to Parliament
1.21 The Democrats continue to support the role the Human Rights and
Equal Opportunity Commission has in reporting unconciliated complaints
to the Parliament. This is an important function is in the public interest
and should not be lessened by this Bill.
Office of the Privacy Commissioner
1.22 In view of the Government's renewed commitment to privacy reforms
related to the private sector, and to bring the Australian position into
line with other countries where privacy laws exist, the Australian Democrats
support the establishment of a separate office of the Privacy Commissioner.
Attorney General's Interference
1.23 Under the proposal, private citizens may only be able to enforce
discrimination complaints against Commonwealth government departments
through the determination of a complaint in Federal Court. Commonwealth
agencies should have a responsibility to comply with legislation as a
matter of administrative practice, not as a result of judicial order.
The provisions should continue to allow disputes against Commonwealth
government departments to be pursued by administrative means.
1.24 There is also a growing issue of privatisation and contracting or
tendering out of government services. More focus should be given to these
issues in relation to access to information needed for complainants to
mount a complaint with a view to providing a legislative or administrative
remedies for the extension of the Freedom of Information or Ombudsman
regime to the service providers contracted by government.
Changing name from Human Rights and Equal Opportunity Commission to
Human Rights and Responsibilities Commission
1.25 For philosophical, and symbolic reasons, as well as international
reputation, the name of the Commission should be retained.
1.26 The Human Rights and Equal Opportunities Commission is so named
in recognition that there are groups within society who face systemic
disadvantage. They are women, indigenous persons, people of a non-English
speaking background and those with disabilities. The three different acts
recognise this. The proposed new title therefore de-emphasises the important
role of the Commission in promoting both equality and equality of opportunity.
1.27 The name also recognises that Australia is acting in terms of its
obligations to international human rights instruments in the above mentioned
areas. The term “responsibility” is derived from the Government's
notion of mutual obligation, but may lead to instances where there is
a general perception that only irresponsible and vexatious people make
complaints of discrimination, rather than such complaints being a legitimate
part of a democratic society upholding, promoting and protecting human
rights. Many of the rights protected under the Human Rights and Equal
Opportunity Commission Act are also often those violated by governments,
and do not occur between individuals. Indeed, they are often systemic.
1.28 We note that no submission supported the Government's proposal to
change the Commission's name.
Natasha Stott Despoja
Deputy Leader of the Australian Democrats
Senator for South Australia