Human Rights Bill

Chapter 1

Background

Introduction

1.1 The Bill has two fundamental objectives. First, it amends the powers and functions of the President and Commissioners of the Human Rights and Equal Opportunity Commission (HREOC) and introduces administrative procedures recommended by a tripartite review of HREOC's functions. Secondly, it seeks to ensure that determinations relating to discrimination under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 can be enforced, in response to Brandy v. Human Rights and Equal Opportunity Commission, in which the High Court held that of HREOC could not make binding determinations.

1.2 In order to appreciate the policy objectives underpinning the Bill, the Committee considers it useful to review:

the current structure and administration of HREOC; and

procedures established to enforce HREOC determinations, before and after the High Court's decision in Brandy's case.

Current Structure and Administration of HREOC

1.3 The Human Rights and Equal Opportunity Commission Act 1986 replaced the Human Rights Commission with HREOC.

1.4 HREOC comprises a President and six Commissioners. The six Commissioners are:

three discrimination Commissioners, namely:

a Race Discrimination Commissioner, appointed under ss.19 and 29 of the Racial Discrimination Act 1975;

a Sex Discrimination Commissioner, appointed under s.96 of the Sex Discrimination Act 1984;

a Disability Discrimination Commissioner, appointed under s.113 of the Disability Discrimination Act 1992;

a Human Rights Commissioner, appointed under s.8B of the Human Rights and Equal Opportunity Act 1986;

an Aboriginal and Torres Strait Islander Social Justice Commissioner, appointed under s.46B of the Human Rights and Equal Opportunity Act 1986; and

a Privacy Commissioner, appointed under s.19 of the Privacy Act 1988.

1.5 The Race, Sex, Disability, Human Rights and Aboriginal and Torres Strait Islander Social Justice Commissioners are sometimes referred to collectively as the "special-purpose Commissioners".

1.6 The Committee was told that corporate management powers are invested in the collegiate body of HREOC as a Commission, similar to a board of directors of a company.

1.7 HREOC delegates the administration of centralised functions, legal services, corporate affairs and public affairs to its Executive Director.

1.8 The special-purpose Commissioners, however, are largely responsible for their own units which provide specialist policy advice and assistance in carrying out the Commissioner's functions. These Commissioners also exercise direct legal powers in, and responsibility for, the day to day handling of complaints under their legislation. The Privacy Commissioner administers all aspect of the Privacy Act 1988.

1.9 Under the three discrimination Acts, a primary role of the respective Commissioners is to conciliate discrimination complaints. Under these procedures, a complainant alleging discrimination will lodge a complaint with HREOC. If it appears to HREOC that a person has done an act that is unlawful, HREOC must notify the relevant discrimination Commissioner, who is given the function of inquiring into the act and endeavouring, by conciliation, to effect a settlement. If a Commissioner has been unable to settle a matter by conciliation, and the complainant still wants to proceed, the Commissioner must refer the matter to HREOC for inquiry. The HREOC inquiry power may be exercised by one or more Commissioners, but not the Commissioner who conciliated the matter. At the conclusion of the HREOC inquiry, the matter is either dismissed or, if the complaint is upheld, there is a determination in favour of the complainant.

1.10 Since 1986, a major issue for HREOC has been the enforcement of its determinations if a matter has not been settled by conciliation.

Enforcing Determinations of HREOC 1986-1993

1.11 Between 1986 and 1993, the relevant discrimination Commissioner conciliated complaints under the Racial Discrimination Act and Sex Discrimination Act. If conciliation failed, a complaint was referred to HREOC for an inquiry by another Commissioner. This Commissioner could either dismiss the complaint or find the complaint substantiated and make a determination on the complaint such as, for example, a declaration that a respondent pay a complainant damages by way of compensation. However, HREOC was not established as a court, was unable to exercise judicial power, and its determinations were not enforceable.

1.12 Accordingly, if a respondent failed to comply with a determination, the complainant or Commissioner could take the matter to the Federal Court for a further hearing. Therefore, between 1986 and 1993, a complainant faced two hearings, one in HREOC and one in the Federal Court, in order to get an enforceable determination in a discrimination matter.

1.13 This situation was noted in Maynard v. Neilson, by Wilcox J of the Federal Court who commented on the cost and duplication of these procedures and expressed concern that they reflected badly on HREOC.

1.14 In November 1992, the Senate Standing Committee on Legal and Constitutional Affairs considered the enforcement of determinations of HREOC in a report entitled Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner.

1.15 In evidence to that inquiry, HREOC and the Privacy Commissioner advocated a scheme under which determinations of HREOC in discrimination matters would be lodged and registered with the Federal Court, on the basis that such determinations would become enforceable orders of the Federal Court if there was no objection within a review period. If there was an objection within the review period, there would be a right of rehearing in the Federal Court.

1.16 Chief General Counsel of the Attorney-General's Department advised the Committee that the proposal was within the Constitution because it allowed for a full review by the Federal Court of the matters dealt with by HREOC. The Chief General Counsel stated:

Legislation to implement the present proposal that HREOC determinations be made enforceable by a court, but only after the respondent has had an opportunity to seek full judicial review, might at first sight seem similar to the legislation upheld by the High Court in Harris v. Caladine (1991) 172 CLR 84 ... I do not think that the legislation would be invalid because of the provision for the court to act on the evidence before the administrative body, so long as the court had full power to allow further evidence to be given before it.

1.17 In keeping with this advice, the Committee recommended that legislation be introduced to enable the registration of determinations of HREOC with the Federal Court, on the basis that such determinations would automatically become enforceable orders of the Federal Court if there was no objection within a review period. It was considered this would allow HREOC, which had the advantage of being a relatively informal and specialist forum, to effectively make binding determinations.

1.18 A minority report by Senators Vanstone, Kemp, O'Chee and Walsh expressed concern that aggrieved respondents would simply lodge objections to registered determinations, making a second hearing inevitable. It argued:

The essence of the problem is that some matters involving human rights are heard and determined twice - once by HREOC and then again by the Federal Court. The most appropriate, most certain and, ultimately, least costly approach to dealing with such matters is to ensure that they are only determined once. Given the constitutional limitations, this determination must be in the Federal Court.

1.19 In November 1992, the former Government introduced, and Parliament subsequently passed, the Sex Discrimination and Other Legislation Amendment Act 1992, establishing procedures for the determination and enforcement of complaints under the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act. These procedures were in keeping with the recommendations contained in the Committee's majority report and advice of the Attorney-General's Department.

1.20 Under these new arrangements, HREOC was required to lodge its determinations with the Federal Court for registration, and enforcement if not objected to within 28 days.

Brandy's Case

1.21 On 13 March 1990, Mr John Bell, an employee of the Aboriginal and Torres Strait Islander Commission (ATSIC), lodged a complaint alleging racial discrimination against ATSIC and a colleague, Mr Harry Brandy, in what was to become known as Brandy's case.

1.22 On 22 December 1993, Hearing Commissioner A.R. Castan QC of HREOC handed down his determination in Brandy, applying the provisions of the Racial Discrimination Act introduced in the Sex Discrimination and Other Legislation Amendment Act 1992.

1.23 The determination upheld the complaint, finding there had been unlawful discrimination under the Racial Discrimination Act. The Commissioner declared inter alia that Mr Brandy and the ATSIC apologise to the complainant, Mr Bell, and pay him the sums of $2,500 and $10,000 respectively by way of damages. In accordance with the new procedures, HREOC lodged the determination with the New South Wales Registry of the Federal Court for registration on 23 December 1993.

1.24 Mr Brandy applied for a review of Commissioner Castan's decision and challenged the constitutionality of the registration and enforcement provisions in the High Court. On 23 February 1995, the High Court upheld Mr Brandy's constitutional challenge, finding that the mechanism for registration and enforcement of HREOC determinations through the Federal Court offended the division of executive and judicial power implicit in Chapter III of the Constitution.

1.25 The High Court noted that it was notoriously difficult to define the nature of judicial power. The High Court found that in Brandy's case there was an exercise of such power because:

HREOC purported to make binding and authoritative determinations;

HREOC was required to ascertain rights by applying existing principles of law to past facts; and

there was a mechanism for enforcement, and it made no difference that the mechanism for enforcement was through the Federal Court.

1.26 Accordingly, HREOC's determinations under the Racial Discrimination Act were once again unenforceable.

Enforcing HREOC Determinations - 1995 to the Present

1.27 In response to Brandy, the former Government introduced the Human Rights Legislation Amendment Bill 1995 which repealed the registration and enforcement provisions of the Racial Discrimination Act, declared invalid by the High Court, and similar provisions in the Sex Discrimination Act and the Disability Discrimination Act.

1.28 In essence, this legislation reverted procedures for enforcement of HREOC determinations to the pre-1993 position. However, under this legislation, a trade union, or in the case of disability discrimination, a person, acting on behalf of a complainant, can also commence proceedings in the Federal Court for an order to enforce a determination. Where the respondent to the determination is a Commonwealth agency there is a separate procedure. A Commonwealth agency must comply with a determination by HREOC and the principal executive officer must bring the determination to the attention of officers whose duties are of such a kind that they may engage in the relevant kind of conduct. There is provision for an appeal to the Administrative Appeals Tribunal on the question of damages.

1.29 This remains the current situation. Hence, once again, a complainant has to go through two hearings in order to obtain an enforceable determination in a race, sex or disability discrimination matter, with the exception of complaints against Commonwealth agencies.

1.30 When introduced into the Parliament, the Human Rights Legislation Amendment Bill 1995 was regarded as an interim response to the decision in Brandy's case, pending further review and legislative response.

The Tripartite Review

1.31 In 1993, a tripartite review team comprising officers from the Attorney-General's Department, the Department of Finance and HREOC examined the functions and management of HREOC. Following the High Court decision in Brandy's case, the tripartite review widened its scope to consider the enforcement of determinations of HREOC.

1.32 The report of the tripartite review was finalised in 1995, but has not been made public. However, in its evidence to the Committee, HREOC advised that the tripartite review recommended that:

steps be taken to unify HREOC and create standard processes for its diverse functions and to this end there should be unified managerial authority at the highest level of HREOC with responsibility for resource allocation and staff management;

the experience and expertise of the Commissioners should be directed to their statutory roles rather than routine matters of administration;

the lines of accountability in complaint handling, other than in relation to Privacy Act complaints, could be simplified to enable more efficient performance and, to this end, complaint handling, other than in relation to Privacy Act complaints, should be combined in one office-holder; and

a separate office should be established for the administration of the Privacy Act.

1.33 The Committee understands that the tripartite review also made recommendations regarding the enforcement of determinations in discrimination matters.

1.34 The tripartite review considered that unconciliated discrimination matters should be referred to the Federal Court. The review envisaged that a Human Rights Division would be established in the Federal Court, and that its judges would delegate some of their functions to registrars, whom the review described as "judicial commissioners".

The Bill

1.35 On 4 December 1996, the Attorney-General, the Hon Mr Daryl Williams AM QC MP, introduced the Human Rights Legislation Amendment Bill 1996 into the House of Representatives.

1.36 The Bill proposes 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 procedure 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. As noted, these amendments are to ensure that determinations relating to discrimination are enforceable following Brandy's case.

Legislation Amended by the Bill

1.37 As well as amending the Human Rights and Equal Opportunity Commission Act 1986, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984, the Bill proposes consequential amendments to the following:

Federal Court of Australia Act 1976;

Defence Act 1903;

Remuneration Tribunal Act 1973;

Workplace Relations and Other Legislation Act 1996; and

Workplace Relations Act 1996.

Budgetary Implications

1.38 The Explanatory Memorandum notes the following financial matters:

The Bill provides for legal assistance to be sought from the Attorney-General, but it is not expected that the amendments will significantly affect the legal aid budget because assistance would be granted only where a refusal to grant would involve hardship.

The transfer of HREOC's determination-making functions to the Federal Court will generate savings for HREOC of $0.6 million per year and will trigger the budget requirement for further general savings of $0.9 million from 1 July 1997.

There will be an increase in the workload of the Federal Court and the appointment of judicial registrars will also have resource implications. Any additional funds necessary will be sought in the new policy process, and offsetting savings may be required.

Referral of the Bill

1.39 On 6 February 1997, the Selection of Bills Committee recommended and the Senate agreed to refer the provisions of the Human Rights Legislation Amendment Bill 1996 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 27 May 1997.

1.40 On 27 May 1997, the Senate agreed to extend the time for the presentation of the Committee's report to 17 June 1997. On 17 June the Senate granted a further extension until 26 June 1997.

Scope of the Inquiry

1.41 When referring the Bill, the Selection of Bills Committee identified the following as the principal issues for consideration:

the appropriate procedures required for the determination of human rights disputes under the bill;

the resourcing of the Federal Court;

the implications of rules relating to costs;

the amicus curiae role for the HREOC Commissioners;

representative complaints;

cuts to legal aid; and

the imposition of higher court fees.

Conduct of the Inquiry

1.42 The Chair of the Committee wrote to HREOC, relevant Departments, community organisations and individuals inviting submissions on the Bill. The Committee received 44 submissions from persons and organisations listed in Appendix 1 as well as correspondence from the Attorney-General's Department.

1.43 The Committee held public hearings on the inquiry in Canberra on Tuesday 11 March and Tuesday 7 April 1997. A list of witnesses who gave evidence appears at Appendix 2.

1.44 On 19 March 1997, the Chair of the Committee wrote to the Attorney-General's Department seeking advice on a number of issues raised in evidence and submissions. The Department's reply dated 22 April 1997, and additional information dated 2 May 1997, are included in this report as Appendix 3.

Evidence on the Bill

1.45 Evidence on the Bill fell broadly into the following categories:

the administration of HREOC, including the new roles of the President and the Commissioners (Chapter 2);

enforcement of determinations in the Federal Court and the procedure of delegating matters to judicial registrars (Chapter 3); and

costs, fees, formality, the rules of evidence and other matters concerning access to the Federal Court (Chapter 4).

Recommendation No 1: