Conclusions and Recommendations
The Bill
Recommendation No. 1: The Committee recommends that the Senate
pass the Human Rights Legislation Amendment Bill 1996, subject to amendments
recommended in Chapters 2 to 4 of this report.
The Role of the President
The Committee accepts the advice of the Attorney-General's Department
that HREOC's proposal to separate the conciliation and reporting phases
of human rights and equal opportunity complaints, and vest the Commission
with responsibility for reporting to Parliament, is inconsistent with
the aim of centralising complaint handling in the office of the President.
Commissioners and Complaint Handling Procedures
The Committee notes that the Human Rights Legislation Amendment Bill
1996 provides that complaints relating to race, sex or disability discrimination
will be referred to the President of HREOC and not to the discrimination
Commissioners, as is currently the case.
The Committee also notes advice from the Attorney-General's Department
that proposals to amend the Bill to allow the President to delegate complaints
to the discrimination Commissioners will be contrary to the goal of centralising
complaint handling in one office in order to ensure a more efficient and
effective and consistent decision-making process.
The Committee further notes advice from the Attorney-General's Department
that the delegation of complaints functions to discrimination Commissioners
is inconsistent with the proposal that Commissioners appear as amicus
curiae if later proceedings are brought in the Federal Court.
The Committee considers that it is appropriate for the Bill to separate
the inquiry and conciliation functions to be performed by the President
from the education and amicus curiae functions to be performed
by the discrimination Commissioners. This separation of functions will
avoid any perception, real or otherwise, that there is a conflict between
the roles of advocacy and conciliation.
Recommendation No. 2: The Committee recommends that the Attorney-General
consider the issue raised by HREOC about the implications of discrimination
complaints being brought against the President of HREOC and the possibility
of a conflict of interest if such a complaint were handled by a staff
member of HREOC, as allowed in the Bill.
Commissioners as Amicus Curiae
Recommendation No. 3: The Committee recommends that, in
order to achieve consistency and good policy, proposed s.46PS(1)(b) of
the Human Rights Legislation Amendment Bill 1996 be amended to read as
follows:
(b) proceedings that, in the opinion of the special-purpose Commissioner,
have significant implications for the administration of the relevant Act
or Acts;
Representation at Compulsory Conferences
Recommendation No. 4: The Committee recommends that the
Attorney-General consider amending s.46PH of the Bill to allow a legal
representative or next friend of a disabled complainant to attend a compulsory
conference with the complainant.
Recommendation No. 5: The Committee recommends that the Attorney-General
consider amending s.46PH of the Bill to ensure that a complainant is not
disadvantaged during conciliation with a respondent who may be represented
by a legally qualified person.
Inspection of Documents During the Conciliation Process
Recommendation No. 6: The Committee recommends that the Attorney-General
consider amending s.46PF(5) of the Bill to provide that the entitlement
to inspect a document referred to is a legal entitlement. Accordingly,
the proposed subsection would read:
"While the President retains any document under this section, the
President must allow the document to be inspected, at all reasonable times,
by any person who would be legally entitled to inspect the document
if it were not in the possession of the President."
Termination of Complaints by the President
Recommendation No. 7: The Committee recommends that the Bill be
clarified to ensure that where a complaint is terminated on the request
of the parties, that complaint can proceed in the Federal Court.
Notice of Federal Court Proceedings
Recommendation No. 8: The Committee recommends 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.
The Constitutional Validity of Delegation to Judicial Registrars
The Committee sought advice from the Attorney-General's Department on
the constitutional validity of proposed s.18AB(3A) of the Federal Court
of Australia Act and, in particular, its interpretation of Harris v
Caladine.
At the Committee's second public hearing, the Attorney-General's Department
advised the Committee that:
"The Harris v. Caladine decision
set out conditions on the basis of which delegation would be consistent
with Chapter III of the Constitution, and those conditions are satisfied
by this legislation ... we take the view that the bill is consistent with
the High Court's decision and that it is consistent with provision that
has been made in relation to the Family Court as well."
The Committee requested that the Attorney-General's Department clarify
its advice having regard to specific concerns raised in evidence.
Subsequent correspondence from the Department expressed some caution,
not about the provisions of the Bill itself, but the extent to which Chapter
III of the Constitution permitted judicial registrars to make enforceable
determinations in contested matters. The Department advised:
" there is a possibility of departure from Harris
v Caladine. If there were any departure, it would be
likely to be in the direction of a narrower view of the extent to which
the judicial power of a federal court may be delegated ... the High Court
acknowledged that ... judges could still fall foul of Harris
v Caladine principles if they in fact delegated too much
power to registrars ... Rules providing for the delegation of part of
the Federal Court's human rights jurisdiction could also be invalid on
constitutional grounds, if they go too far."
The Committee remains concerned whether Chapter III of the Constitution
permits judicial registrars to make binding determinations in contested
discrimination matters.
Notwithstanding these concerns, the Committee accepts the advice of the
Attorney-General's Department that the proposed subsection is valid because
judges will be the arbiter of whether to delegate to judicial registrars.
The Committee also notes the advice of the Department that judicial registrars
are already used in contested matters in the Family Court and the Industrial
Relations Court.
The Committee, however, also notes that under the Federal Court of Australia
Act judges already have the power to delegate to judicial registrars.
It is arguable that a preferred approach would be to rely on the general
power to delegate rather than including a specific provision in the Bill.
Two reasons may be advanced to support this proposition. First, by specifically
mentioning the discrimination jurisdiction, the Bill sets out to encourage
delegation, possibly wide delegation, in this area. If a particular delegation
exceeded the constitutional limits, Parliament may be seen to have encouraged
a breach of the spirit, at least, of the separation of powers. Secondly,
the impression may arise that discrimination matters are seen as less
important than, say, commercial or property matters.
Alternative Approaches to Hearing Discrimination Matters
Recommendation No. 9: The Committee recommends that, as a matter
of priority, the Attorney-General consider the feasibility of establishing
a federal magistracy for discrimination and other appropriate federal
matters.
The Committee considers that the Attorney-General, when considering proposals
for a federal magistracy, should investigate the possibility of discrimination
claims being filed initially in the relevant court and then being referred
to HREOC for conciliation.
The Committee notes the conflicting evidence given in relation to specialist
tribunals hearing discrimination matters. On balance, the Committee is
of the view that discrimination matters should be determined by a court
of general jurisdiction composed of judges appointed under Chapter III
of the Constitution.
Legal Costs in the Federal Court
The Committee is of the view that it is appropriate that costs follow
the event in discrimination matters heard in the Federal Court.
The Committee is of the view that there is no public policy reason why
lawyers acting in discrimination matters should be limited to charging
their clients party/party costs.
Replacing Complainants in Class Actions
Recommendation No. 10: The Committee recommends that the Attorney-General,
as a matter of priority, consider issues relating to the withdrawal and
replacement of representative complainants and if appropriate introduce
Government amendments to the Human Rights Legislation Amendment Bill 1996
to provide that a representative complainant who withdraws may be replaced.