Human Rights Bill

Chapter 2

The Structure And Administration of HREOC

Provisions of the Bill

2.1 The Human Rights Legislation Amendment Bill 1996 introduces changes to HREOC's procedures for handling complaints. These changes will be accompanied by structural and administrative changes to HREOC itself.

2.2 The Bill proposes three major changes. First, the Bill introduces uniform procedures for handling complaints under the three anti-discrimination Acts, based primarily on the Disability Discrimination Act. Secondly, all inquiry and conciliation functions under the three anti-discrimination Acts will be matters for the President and not the individual Commissioners. Thirdly, the President of HREOC will attempt to conciliate a complaint, but HREOC will not hear and determine an unconciliated complaint. If a complaint is not settled though conciliation the President will terminate the complaint. Upon termination, a complainant will be able to access the Federal Court, unless the termination is made at the request of the complainant.

2.3 In his second reading speech, the Attorney-General specifically commented on the new role for the Commissioners in the following terms:

the Commissioners (other than the Privacy Commissioner), removed from their current role of attempting conciliation (which the Bill will confer on the President) are to be given a function of amicus curiae to argue the policy imperatives of their legislation before the Federal Court (but subject to obtaining the leave of that Court).

2.4 During the inquiry, the Committee heard evidence on the appropriateness of these changes to the structure and administration of HREOC as proposed in the Bill. In this Chapter, the Committee reviews evidence on the following matters:

the role of the President, including reporting to the Minister on unconciliated complaints;

direct access to the Federal Court;

the role of the Commissioners, including

complaint handling procedures;

amicus curiae;

proceedings in the Federal Court;

systemic discrimination; and

complaints against Commonwealth agencies.

The Role of the President

2.5 In his second reading speech, the Attorney-General said that the Bill will encourage better administration in HREOC by clarifying the lines of management responsibility and facilitating timely decision making.

2.6 In order to achieve these objectives, the Attorney indicated that the President of HREOC will become its Chief Executive Officer, a function which the Attorney-General explained is currently conferred on the Commission itself. The President will be responsible for all complaint handling under the Commonwealth's anti-discrimination and human rights legislation. In addition, the implementation of co-operative arrangements with the States and Territories, where these exist, will be done by the President.

2.7 In its evidence to the Committee, HREOC raised the reporting of unconciliated human rights and equal opportunity complaints to the Minister.

2.8 Under current provisions of the Human Rights and Equal Opportunity Act, the Human Rights Commissioner inquires into and conciliates matters concerning human rights and also discrimination in relation to equal opportunity. Human rights and equal opportunity complaints are lodged with HREOC under ss.11 and 31 of the Human Rights and Equal Opportunity Act. They do not follow the same process as discrimination complaints under the Race, Sex and Disability Acts. In contrast with race, sex and disability complaints, there is no determination of an unconciliated human rights or equal opportunity complaint. Rather, the Human Rights Commissioner is required to report an unconciliated complaint to the Minister, who in turn must table the report in each House of Parliament.

2.9 The Bill transfers the Human Rights Commissioner's functions in relation to human rights and equal opportunity to the President. This means that the President will inquire into and conciliate human rights and equal opportunity matters and, if not settled through conciliation, report them to the Minister. The President will be able to delegate these functions to the Human Rights Commissioner, but not to any other Commissioner.

2.10 In evidence to the Committee, HREOC maintained that the function of reporting on unconciliated matters should be the responsibility of the Commission as a whole, and not just the President. This is because the President, who is involved in the conciliation process, should not be reporting on the results of that process. In a supplementary submission, HREOC argued that "separating the conciliation and determination of complaints is central to the whole structure of the Commission's legislation." HREOC also argued that, for human rights and equal opportunity complaints, reporting to the Minister was analogous to making a determination. Accordingly, HREOC recommended that the Bill be amended so that the Commission as a whole reports unconciliated complaints to the Minister.

2.11 The Committee referred HREOC's recommendation on this aspect of the Bill to the Attorney-General's Department for comment. In reply, the Department advised:

The proposal to separate the conciliation and reporting phases of ... 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. Additionally, the Commission as a whole would not have a background in the complaint which was to be the subject of a report.

Conclusion:

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.

Direct access to the Federal Court

2.12 Under the provisions of the Human Rights Legislation Amendment Bill 1996, proceedings can only be brought in the Federal Court if a complaint has first been lodged with HREOC and the President has terminated the complaint and given the complainants notice of the termination.

2.13 Some witnesses recommended that complainants should have direct access to the Federal Court.

2.14 Mr Basten QC, a member of the New South Wales Bar, said that for many complaints of a serious nature, including complaints relating to systemic discrimination, the requirement to go through HREOC was "an imposition of bureaucratic delay". He suggested that an applicant should have the choice whether to seek conciliation through HREOC or a determination of the matter by the Federal Court, with the proviso that the respondent can apply to overrule the applicant's choice. According to Mr Basten QC, there would need to be legislative criteria to determine where the matter should be referred first, if the respondent made such an application.

2.15 Mr Basten proposed further amendments that would enable a matter to be taken directly to the Federal Court if the complaint involves a matter of public importance, earlier conciliation has failed, or the matter requires urgent resolution and the applicant will suffer detriment should it be required to be processed through HREOC.

2.16 Dr Jocelynne Scutt, a member of the Victorian Bar, who gave evidence for the Women for Workplace Justice Coalition, argued that there were already significant delays with conciliation in HREOC and that these would be exacerbated if conciliation were transferred to the President's Office. She suggested that, instead, it would be preferable for applications to be lodged directly in the Federal Court, with conciliation taking place within the Court timetable. She explained:

In my view, it would be better to have the whole thing in the Federal Court and have the conciliation by the industrial registrars. Then at least the Federal Court is seised of the matter immediately there is a complaint and they can impose some sort of time limits so that people are not left drifting about waiting to be conciliated. There have been a number of times when people believe that they have come to a conciliation and there has been some sort of settlement and then letter after letter goes out to the respondents saying, `We understood that you had agreed; where is your final offer?', and nothing appears. So then eventually you do end up in the inquiry process within the human rights commission after there has been this truncated process and length of delay. A lot of it is to do with respondents wishing to engage in a war of attrition. They believe that the longer they drag things out, the more likely it is that the person who is the complainant will run out of money, will run out of puff and will be so upset and distraught by the length of the proceedings that they simply will not go on. If the whole thing were in the Federal Court, perhaps there would be some control over these time lines.

2.17 On the other hand, HREOC submitted that it was important that, at first instance, all complaints should proceed through HREOC. HREOC advised:

the consistent approach of all governments to anti-discrimination law has been to emphasise conciliation as the preferred method of resolving disputes. There is enough flexibility, in appropriate cases, for complaints to be "fast tracked" through the Commission, if the President is of the view that such a course is expedient and appropriate.

2.18 The Attorney-General's Department also advised that as a matter of policy the requirement to proceed through HREOC before accessing the Court should be retained, so that matters can be resolved by conciliation where possible. The Department advised that "well over 80 % of complaints were finalised before recourse to formal Commission hearings or subsequent Court proceedings".

Role of Discrimination Commissioners

2.19 As noted above, the Bill will introduce significant changes to the role of the Commissioners. These changes attracted considerable comment in evidence, which may be summarised under the following four broad categories:

Commissioners and complaint handling procedures;

Commissioners as amicus curiae;

Commissioners and proceedings in the Federal Court; and

Commissioners and systemic discrimination.

Commissioners and Complaint Handling Procedures

2.20 The Bill provides that HREOC must refer a complaint alleging race, sex or disability discrimination to the President. The President must inquire into the complaint and attempt conciliation.

2.21 Under the provisions of the Bill, the President is not able to delegate race, sex or disability discrimination complaint functions to any Commissioner. This means that Commissioners will no longer inquire into and conciliate race, sex and disability discrimination matters.

2.22 The removal of the discrimination Commissioners from the complaints process attracted considerable criticism. For example, Ms Chris Ronalds, a member of the New South Wales Bar, who gave evidence for the National Pay Equity Coalition and the National Children's and Youth Law Centre, described the proposal as "a serious downgrading of the role of Commissioners". She expressed the view that the change is so substantial that there needs to be more consultation.

2.23 Associate Professor Phillip Tahmindjis of the Queensland University of Technology Faculty of Law and the National Pay Equity Coalition (NPEC) stated that specialist understanding of sex, race or disability discrimination is required in complaint handling. This specialist understanding will be lost if the discrimination Commissioners are not involved in the complaints process.

2.24 Other witnesses raised related concerns with the proposal. For example, concerns were expressed that the President will not be able to handle the resultant case load and that this situation will be exacerbated by "the already significant delays in HREOC". NPEC noted that the Bill allows the President to delegate complaints to the staff of HREOC, but not Commissioners. According to NPEC, the staff of HREOC will lack the independence and authority of a Commissioner, notwithstanding the expertise they may gain in handling complaints.

2.25 In evidence, HREOC supported measures to centralise complaint handling. However, it also recommended that the Bill be amended to permit the President to delegate complaints to any Commissioner with the proviso that that Commissioner will not be able to appear subsequently as amicus curiae if the matter is contested in the Federal Court.

2.26 The Committee raised these concerns with the Attorney-General's Department. In response, the Department advised that:

The Bill does not ... allow the President to delegate complaint handling to the Sex Discrimination Commissioner, the Race Discrimination Commission or Disability Discrimination Commissioner. To provide for such delegation would be contrary to the stated reasons for centralising complaint handling in one office, ie the desire to ensure a more efficient, effective, and consistent decision making process. It would also be inconsistent with the proposal to provide Commissioners with the additional function of appearing as amicus curiae in later proceedings before the Federal Court.

2.27 The Attorney-General's Department also noted that, although the President cannot delegate race, sex or disability discrimination complaints to Commissioners, there is nothing in the Bill preventing the President from delegating complaint handling to staff of HREOC.

2.28 In a supplementary submission, HREOC re-emphasised its view that the President should be able to delegate the handling of discrimination complaints to Commissioners. In support of this view, HREOC queried what would happen if a complaint were made against the President. It concluded that any such complaint should be heard by a Commissioner and not a staff member of the Commission, as allowed under the Bill. HREOC advised the Committee that it "would be unacceptable for a staff member to handle a complaint involving the President".

2.29 The supplementary submission of HREOC raises two issues. The first relates to a possible conflict of interest if a staff member of HREOC handled a complaint against the President. It should be noted, however, that although a Commissioner may be more independent than a staff member of HREOC, the possibility of conflict of interest may still arise if a Commissioner of HREOC were to conciliate allegations of discrimination against the President. Secondly, the question arises whether this situation supports a general amendment to the Bill to allow the President to delegate the handling of discrimination complaints to Commissioners. The Committee is not convinced that it does. Nevertheless, the Committee is of the view that the issues raised by HREOC should be considered by the Attorney-General.

2.30 In its submission, Resolutions Pty Ltd on behalf of the Australian Bus and Coach Association supported legislative changes which aim to centralise complaints handling in the office of the President. It argued that the special-purpose Commissioners are in a difficult position in that they also have an advocacy role which requires them to take public positions on controversial issues. The submission went further and suggested that the advocacy role conflicted with the conciliation role, stating:

In principle, specialist Commissioners are charged with performing a balancing role between the interests of complainants, the general public [and] other[s] ... . However, we believe it is very difficult to do other than conclude that specialist Commissioners (and by extension the Human Rights and Equal Opportunity Commission) have generally acted as advocates, rather than seeking to balance competing claims in light of the objectives set out in the Act.

Conclusions and Recommendation No. 2:

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.

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

2.31 Section 46PS of the Bill proposes that the Race, Sex, Disability, Human Rights and Social Justice Commissioners, referred to in the Bill as the special-purpose Commissioners, may assist the Court, as amicus curiae. The proposed section states:

(1) A special-purpose Commissioner has the function of assisting the Court, as amicus curiae, in the following proceedings under this Division:

(a) proceedings in which the special-purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;

(b) proceedings that have significant implications for the administration of the relevant Act or Acts;

(c) proceedings that involve special circumstances that satisfy the special-purpose Commissioner that it would be in the public interest for the special-purpose Commissioner to assist the Court as amicus curiae.

(2) The function may only be exercised with the leave of the Court.

2.32 Amicus curiae means "friend of the court" and is usually a person who takes a strong interest in or has views on the subject matter of a proceeding. An amicus curiae is not a party to proceedings, generally has no right of appeal, cannot file pleadings or motions, and does not have the right to participate in every aspect of the argument. The role of an amicus is to draw the court's attention to matters relating to the issues which the court might have overlooked. In the United States amicus briefs are often filed in public interest and civil rights cases. An amicus curiae is a "friend of the court", and as such is not necessarily a "friend of a party". It should be noted that HREOC may be a party to proceedings as, under the Bill, it retains the power to intervene in proceedings involving discrimination issues.

2.33 The Committee did not receive extensive evidence on the proposal to confer on Commissioners the role of amicus curiae. However, the evidence it did receive was conflicting. For example, the Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) supported the amicus curiae role under the Bill, as did HREOC.

2.34 On the other hand, some evidence, including the submission from the Queensland Law Society, maintained that it was inappropriate for Commissioners to have an amicus curiae role. According to the Society, the fact that under the Bill special-purpose Commissioners will no longer have an inquiry function is not a sufficient reason for giving them the amicus curiae function.

2.35 Similarly, a submission on behalf of the Australian Bus and Coach Association registered its opposition to special purpose Commissioners being accorded the role of amicus curiae. According to this submission, "we are extremely doubtful as to the impartiality of special-purpose Commissioners" and therefore "it is inappropriate for the legislature to give an indication to the Court that special-purpose Commissioners are ... amicus curiae, when in fact this is not the case".

2.36 In its evidence to the Committee, HREOC registered in principle support for those provisions in the Bill establishing the role of amicus curiae for the special-purpose Commissioners.

2.37 HREOC, however, raised a technical matter relating to these provisions of the Bill. According to HREOC, s.46PS provides three grounds on which a special-purpose Commissioner may seek to appear as amicus curiae. Under s.46PS(1)(a) and (c), the test to determine whether a special-purpose Commissioner will assist the Court as amicus curiae is a subjective test, based on the opinion of the Commissioner. HREOC indicated that a similar subjective test is not provided in s.46PS(1)(b).

2.38 In evidence, Ms Zita Antonios, the Race Discrimination Commissioner questioned what would happen under the proposed legislation if someone other than a Commissioner took the view that a legal proceeding had significant implications for the administration of the relevant Act. The Commissioner appeared to be concerned about the possibility that in such a situation a Commissioner could be compelled, by a court order or otherwise, to assist the court as an amicus curiae.

2.39 HREOC, therefore, maintained that paragraph (b) of the proposed section should be amended to make it consistent with (a) and (c), recommending that a similar subjective test be included in the paragraph.

Recommendation No. 3:

2.40 Associate Professor Phillip Tahmindjis raised a related matter, expressing concern that the Bill provides that the amicus curiae role can only be exercised with the leave of the Federal Court. He suggested that special-purpose Commissioners should have such a role as of right.

2.41 The Committee referred Associate Professor Tahmindjis' concern to the Attorney-General's Department. In response, the Department advised that generally the parties should be able to carry on their case free from the interference of persons who are strangers to the litigation, and that the ability to appear as of right would be inconsistent with this principle.

Commissioners and Proceedings in the Federal Court

2.42 The Committee was told that the Bill limits the role of Commissioners and that amendments should be introduced to expand their role in certain circumstances.

2.43 Specifically, the Committee heard evidence that Commissioners should have the power to initiate proceedings in the Federal Court as a complainant. For example, Mr John Basten QC, a Sydney barrister, who appeared in a private capacity, argued that Commissioners should be given the power to initiate proceedings in the Federal Court in matters where they think it appropriate. He likened this proposal to the power of the Australian Competition and Consumer Commission (ACCC) under s.80 of the Trade Practices Act 1974, which enables the ACCC to bring proceedings in relation to a breach or attempted breach of certain provisions in that Act.

2.44 The Committee referred this matter to the Attorney-General's Department for comment. The Department advised the Committee that the Government's policy is that only the person affected by the discrimination should be eligible to make an application to the Federal Court.

Commissioners and Systemic Discrimination

2.45 In her evidence, Dr Marian Sawer of the Women's Electoral Lobby recognised that, under the provisions of the Bill, the discrimination Commissioners will not be involved in complaint handling procedures but rather will perform an education and advocacy role. In these circumstances, Dr Sawer suggested that Commissioners should be specifically empowered to examine issues of systemic discrimination. She explained:

I think that everyone who has commented on Australian anti-discrimination legislation has noted that it has been ineffective in addressing systemic discrimination because of its individual complaints based nature. We believe that this opportunity should be taken to give the specialist commissioners a non-complaint based inquiry power - which would not mean they were handling individual complaints. We believe also that they should be given a role in developing enforceable standards relating to the relevant legislation. Recommendations have been made by the Australian Law Reform Commission, and we believe they would significantly enhance the capacity of Australian anti-discrimination legislation to address broad issues of systemic discrimination. We note that the expertise of the specialist commissioners and of their dedicated staff is absolutely essential if complex issues of systemic discrimination are to be pursued - and if, of course, the commissioners are to be effective in other ways.

2.46 Dr Scutt, a Melbourne barrister, who represented the Women for Workplace Justice Coalition, endorsed these comments.

2.47 The Attorney-General's Department provided the Committee with the following advice on mechanisms for exposing and addressing systemic discrimination:

the Commissioners will have an ongoing educative role and may raise the systemic aspects of a particular allegation of discrimination in the exercise of their role as amicus curiae.

2.48 The Attorney-General's Department also advised that the Federal Court is required to make such orders as it thinks appropriate and that court orders are only binding between the parties to the proceedings. However, according to the Department, it may be that the practical impact of these orders may go beyond the individual alleging discrimination. Therefore, a decision of the Court, which could take into account arguments from a Commissioner as amicus curiae, may have precedent value to change any discriminatory policy or practice.

2.49 The Committee also notes that HREOC will retain a number of functions under discrimination legislation, which could be performed by Commissioners, which enable it to undertake various programs and inquiries that may impact on systemic discrimination. HREOC also has powers to inquire into and report on certain human rights and equal opportunity issues, such as any action that may need to be taken to ensure that Australia complies with relevant international instruments.

Complaints Against Commonwealth Agencies

2.50 The Disability Discrimination Act, the Racial Discrimination Act and the Sex Discrimination Act currently make special provision for enforcing HREOC determinations against Commonwealth agencies. Complaints against Commonwealth agencies do not have to go through the Federal Court, and respondent Commonwealth agencies are required to comply with HREOC determinations. The Bill repeals, and does not reproduce, these provisions. Accordingly, complaints against Commonwealth agencies would be determined by the Federal Court in the normal way. This change would not appear to be required by Brandy's case.

2.51 Ms Rosemary Hunter of the University of Melbourne Law School submitted:

While these provisions were not invalidated by the Brandy decision, they are not reproduced in the Bill. This means that complainants will be compelled to proceed against Commonwealth agencies in the same way as against other respondents, and incur the added expenses of doing so. The removal of the special provisions also appears to absolve the Commonwealth of any heightened responsibility for complying with its own legislation. In these respects, the Bill actually reduces the promotion of human rights.

2.52 Ms Hunter suggested that HREOC retain the function of hearing and determining complaints against Commonwealth agencies, although she noted that the function would best be performed by a part-time Hearing Commissioner given the involvement of the President's office in the dispute-resolution process.

2.53 Mr Peter Bailey of the ANU Faculty of Law also favoured a special mechanism for enforcing determinations against Commonwealth agencies, referring to ss.57 to 63 of the Privacy Act. He suggested that there could be an appeal to the Administrative Appeals Tribunal, as is the case under the Privacy Act.

2.54 The Attorney-General's Department advised the Committee that:

. . . there is no reason for imposing a separate "enforcement" regime on respondents who are Commonwealth agencies [as HREOC will no longer have a general role in determining complaints]. The Bill aims to implement a uniform regime for all respondents, whether they are Commonwealth, or non Commonwealth entities.

2.55 However, the Committee notes that there is an argument that this raises the virtue of uniformity over the convenience of complainants and fails to give sufficient weight to the potential for reducing legal costs in relation to discrimination applications against Commonwealth agencies.

Other Matters

2.56 The Committee considers that it is useful to record the evidence on twelve other matters that were raised during the course of the inquiry. These matters relate to:

assistance to complainants in HREOC;

the form of complaints lodged with HREOC;

amending complaints;

compulsory conferences and confidentiality;

representation at compulsory conferences;

consequences of failure to attend a compulsory conference;

inspection of documents during the inquiry/conciliation process;

self incrimination at compulsory conferences;

conciliated agreements;

the termination of complaints by the President;

referring discriminatory awards; and

notice of Federal Court proceedings.

Assistance to complainants in HREOC

2.57 Some witnesses were concerned about the nature and extent of assistance that would be provided to aggrieved persons seeking to file discrimination complaints in HREOC.

2.58 The Committee notes that proposed s.46P(4) provides that if it appears to HREOC that a person wishes to make a complaint, and the person requires assistance to formulate the complaint and reduce it to writing, HREOC must take reasonable steps to provide appropriate assistance to the person.

2.59 Proposed s.46PQ provides that HREOC would be able to help a person prepare the forms required to make an application to the Federal Court for redress of unlawful discrimination.

The Form of a Complaint Lodged with HREOC

2.60 Proposed s.46P(1) in the Bill provides that a written complaint may be lodged with HREOC, alleging unlawful discrimination.

2.61 Two comments were made regarding s.46P(1).

2.62 First, the Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) said it failed to address the problem that one claim cannot refer to two or more different kinds of discrimination, eg discrimination on the grounds of race and gender.

2.63 In reply, the Attorney-General's Department advised that there is nothing in the Bill which would prevent a person lodging a complaint which alleged more than one form of discrimination.

2.64 Secondly, Legal Aid Western Australia argued that limiting a complainant to a written complaint is not an equitable principle as some people may find it easier to explain their problems orally. It was also suggested that audio, video, tape recordings in languages other than English should be allowed.

2.65 Ms Zita Antonios, the Race Discrimination Commissioner, gave evidence that HREOC takes a broad view of "complaint in writing". She explained that the term extends to computer discs, and that complaints are accepted in languages other than English. In addition, the Attorney-General's Department advised the Committee:

The reduction of a complaint to writing is necessary in order to ascertain the issues under contention. This should not however be seen as a restriction on the ability to make a complaint. The practice of the Commission is to assist, where possible, the framing of the complaint ... Proposed clause 46P(4) of the Bill places an obligation on the Commission to take reasonable steps to provide appropriate assistance to a person who needs help in formulating a complaint or reducing it to writing. There is no requirement that complaints be in English.

Amending Complaints

2.66 The Bill provides that, with the leave of the President of HREOC, any complainant or respondent may amend a complaint to add, as a respondent, a person who is alleged to have done the alleged unlawful discrimination.

2.67 The Attorney-General's Department explained the policy behind the provisions in the following terms:

Inclusion of this provision was considered necessary to address any technical arguments based on the definition of "respondent" in the Bill. It would be unfair to a complainant to impose a requirement that the correct respondent(s) be identified at the point of lodgement of a complaint. Nor would it be fair to a respondent to preclude addition of another respondent as appropriate.

2.68 Legal Aid Western Australia recommended that this provision be extended to provide for further amendments to the contents of a complaint.

2.69 In reply, the Attorney-General's Department advised that there is nothing in the Bill that requires a complaint at the time of lodgement to particularise all aspects of the claim. A further complaint can be lodged and the two complaints be dealt with in one inquiry where appropriate.

2.70 Proposed s.46PD(4) of the Bill also provides that a complaint cannot be amended after it is terminated by the President under s.46PE. Proposed s.46PL(3) provides that discrimination alleged in an application filed in the Federal Court must be the same as, or the same in substance as, the discrimination that was the subject of the terminated complaint.

2.71 The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) was concerned that s.46PD will prevent the amendment of a complaint between termination by the President and lodgement of an application with the Federal Court. The group submitted that it should be possible to include related discrimination arising between termination and filing a Federal Court application.

2.72 Mr Basten QC was also concerned that the effect of the provision will be to prevent amendments being made in the Federal Court. He stated:

If you do not get legal advice before you draft your first complaint, and if you draft it too narrowly, you may find that you are simply not able to litigate the matters which you wish to litigate, even if you have a good complaint on a slightly different ground. It is very often the case that unconciliated complaints go to inquiry in circumstances where the correct respondent has not been identified.

2.73 Mr Basten QC suggested that the Bill be amended to allow the amendment of claims to allege further or other material facts, add, substitute or amend the name of a respondent, and add, vary or exclude the grounds on which the complaint is made.

2.74 HREOC proposed a more limited solution, noting that the proposed s.46PL(3) provides that a claim lodged in the Federal Court only needs to be substantially the same as the complaint lodged with HREOC. HREOC advised:

The Commission would be concerned if any amendment of a complaint could raise whole new grounds of discrimination which had not been broached when the matter was before the President for investigation and conciliation ... In some circumstances it may be appropriate for ... different but related complaints to be dealt with jointly in their progression through the Commission. However, sometimes, especially if the victimisation occurs quite a deal later, this may not be possible or even appropriate. Thus, to use this example, the Commission would not see it as appropriate that a complaint of discrimination which has reached the Federal Court could be amended to include much later acts of victimisation.

2.75 HREOC suggested that, for the avoidance of doubt, the Federal Court be given explicit power to allow amendments to relevant complaints, provided claims made in the amendments arose out of the same, or substantially the same, acts, omissions or practices that were the subject of the complaint terminated by the President.

2.76 However, Ms Chris Ronalds, a member of the New South Wales Bar, told the Committee that she could not support HREOC's general position on amendments:

The issue of being able to amend a complaint is, in my submission, a serious one. I cannot support the supplementary submission by the Human Rights and Equal Opportunity Commission which says that all complaints should go back to them. In my experience of complaints, victimisation complaints which appear later should just be added at the Federal Court stage. If you cannot conciliate the discrimination complaint, in my experience, you are not likely to be able to conciliate a later victimisation complaint. It is just impractical. It is ridiculous to suggest that you run two separate cases where the facts overlap, even if they are some years apart. It is an unrealistic view being adopted by the commission, in my view, and it does not reflect good practice. The complaint should be able to be amended both in terms of date and content, and to add later substantive complaints, particularly of victimisation or later acts of discrimination at any stage, including in the Federal Court.

2.77 The Attorney-General's Department maintained Ms Ronalds' and Mr Basten's proposal is inconsistent with the policy of requiring discrimination matters to go through conciliation first.

2.78 The Department advised that subsequent acts of discrimination will be able to be referred to HREOC in the usual way. HREOC would then expedite the conciliation process, and the complaint could be terminated on the ground that there is no reasonable prospect of it being conciliated.

2.79 Further, the Department advised that s.46PL(3) in the Bill, which allows a Federal Court application to be filed if it is in substance the same as the complaint filed in HREOC, is sufficient to enable an applicant to refine the grounds of a Federal Court application. The Department therefore did not appear to agree with HREOC's suggestion that the Federal Court needed to be given an explicit power to enable there to be variation between a complaint and an application.

Compulsory Conferences and Confidentiality

2.80 Proposed s.46PG of the Bill provides that the President may direct the holding of compulsory conferences of the complainant and respondent for the purpose of inquiring into and conciliating a complaint. Proposed s.46PH of the Bill sets out certain provisions relating to proceedings at a compulsory conference.

2.81 Mr Peter Bailey , Visiting Fellow, Faculty of Law, Australian National University, was concerned that the Bill seemed to overlook the "extremely important" provision in existing discrimination legislation that makes conciliation proceedings, including compulsory conferences, confidential and not admissible in subsequent proceedings. He gave as an example s.57(3) of the Sex Discrimination Act, which provides:

Evidence of anything said or done in the course of conciliation proceedings under the Division (including anything said or done at a conference held under the Division) is not admissible in subsequent proceedings under this Part relating to the matter.

2.82 The Attorney-General's Department advised that there is adequate regard for confidentiality by reason of the usual common law privilege attaching to without-prejudice communications and the statutory protection afforded to some documents by s.131 of the Evidence Act 1995.

Representation at Compulsory Conferences

2.83 The Human Rights Legislation Amendment Bill 1996 provides that, unless a person presiding over a conference consents (a) an individual is not entitled to be represented at the conference by another person, and (b) a body of persons is not entitled to be represented by another person at the conference, other than by an officer or employee of that body. However, an individual who is unable to attend a compulsory conference because of a disability is entitled to nominate another person to attend instead.

2.84 The National Federation of Blind Citizens of Australia argued that a person with a disability might physically be able to attend a conference but still require a person to represent his or her interests. Legal Aid Western Australia also submitted that a person should be able to bring a "next friend" to a conference.

Recommendation No 4:

2.85 A further issue was raised by the New South Wales Council for Intellectual Disability which was concerned that an applicant employee will be at a disadvantage if the respondent has in-house counsel who, being an employee, could attend the conference as of right. The Council suggested a possible amendment to prevent legal officers of a respondent attending, except with the consent of the President or person presiding over the conference.

Recommendation No. 5:

Penalty for Failure to Attend a Compulsory Conference

2.86 Section 46PI of the Bill provides that a person who has been given a direction to attend a compulsory conference must not, without reasonable excuse, fail to attend as required or fail to report from day to day unless excused by the person presiding. The penalty is 10 penalty units.

2.87 Ms Curran of the Federation of Community Legal Centres told the Committee that the Parliament should be wary about introducing criminalising provisions in relation to the compulsory conferences as there might be a number of reasons why people might be frightened to attend. According to Ms Curran, a person who has been sexually harassed or racially vilified may feel extremely uncomfortable going to a compulsory conference. The Law Institute of Victoria also noted a similar concern about this provision.

2.88 The Attorney-General's Department advised the Committee that the provision is not new, and that it reflected existing provisions in the Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act.

Inspection of Documents During the Conciliation Process

2.89 Proposed s.46PF provides that the President can serve a notice to produce on a person requiring them to provide relevant documents to the President. Subsection (5) reads:

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 entitled to inspect the document if it were not in the possession of the President.

2.90 Legal Aid Western Australia submitted that it remains unclear whether the complainant and/or any other affected or interested person will be able to inspect these documents.

2.91 HREOC submitted that the proposed s.46PF(5) provides a supplementary regime, additional to that under the Freedom of Information Act, for accessing documents obtained by the President pursuant to clause 46PF, but not to other documents obtained by the President as part of the ordinary process of investigation. To clarify the intent of the provision HREOC suggested that the word "legally" be inserted before the word "entitled".

2.92 The Attorney-General's Department submitted that the proposed provision was a standard clause used in legislation to ensure that "a person who is otherwise legally entitled to inspect certain documentation from time to time can do so, even though it may be in the possession of the President for the purposes of an inquiry".

2.93 The Department's view appears to be that part of the amendment proposed by HREOC is implied. The Department also noted that the clause is substantially the same as existing provision in the Racial Discrimination Act, Sex Discrimination Act and Disability Discrimination Act.

Recommendation No. 6:

Self-Incrimination at a Compulsory Conference

2.94 Proposed ss.46PF, 46PG and 46PH give the President power, during the conciliation process, to obtain relevant information and documents. Proposed s.46PJ(3) of the Bill provides that, in this regard, an individual may refuse to give evidence or produce a document if it might tend to incriminate the individual or expose them to a penalty.

2.95 Associate Professor Phillip Tahmindjis argued that this prohibition against self-incrimination is too wide. He submitted that under the current legislation, it is not an excuse to allege self-incrimination during the investigation stage of conciliation, but it is an excuse at a public hearing. As the latter function is to be removed from HREOC, he was of the view that the proposed self-incrimination provision is unnecessary. A similar observation was made by Legal Aid Western Australia.

2.96 On the other hand the Queensland Law Society Inc. and the Queensland Council of Civil Liberties were in favour of the clause as a measure for protecting civil liberties.

2.97 The Attorney-General's Department advised the Committee that this provision reflects the existing self-incrimination clause in the Human Rights and Equal Opportunity Act. However, the Department noted that currently self-incrimination is not an excuse for failing to provide information in relation to sex, race and disability discrimination complaints.

2.98 The Department argued that extending the principle to discrimination matters is justified because there is "a general principle that a person should be able to refuse to provide information on the grounds that to do so might incriminate that person". Royal commissions are an exception to the rule, but the Department did not consider HREOC proceedings comparable. Secondly, "it would seem strange . . . to compel parties to provide information they would not otherwise choose to provide (nor be forced to provide in subsequent Court proceedings) in the hope that they might be able to amicably settle their dispute."

Recording The Outcome Of, And Enforcing, Conciliated Agreements

2.99 Mr Peter Bailey suggested that the Bill be amended to require the President to record (in confidence, if required by the parties) the outcome of the conciliation. He considered that this will bring a degree of formality and authority to conciliated agreements.

2.100 However, the Attorney-General's Department considered that this matter should be one for the parties and that to require that all conciliated agreements be reduced to writing will not encourage the resolution of complaints in an informal manner.

2.101 Once a complaint has been conciliated, the question arises as to how the conciliated agreement can be enforced.

2.102 Ms Chris Ronalds, a member of the New South Wales Bar, told the Committee:

there has always been much discussion amongst practitioners about the enforcement of conciliated agreements prior to a matter being settled between the parties. It is unfortunate . . . there is not some provision made to ensure that a properly signed agreement, a deed of release, is enforceable in some appropriate method.

2.103 Associate Professor Tahmindjis of the Queensland University of Technology suggested that the Bill be amended to enable the President to terminate a complaint where a party reneges on an agreement reached through conciliation. He argued that it should be made clear that a party can bring proceedings in the Federal Court in such an event.

2.104 The view of the Attorney-General's Department is that, where a respondent breaks a conciliated agreement, the complainant will be able to re-lodge the complaint with the Commission, and the complaint can be quickly terminated given the history of the matter.

2.105 However, this may not be entirely satisfactory because the party not in default would be obliged to litigate the whole matter, or at least seek a judgement on the deed of release or terms of settlement.

Termination of Complaints by the President

2.106 The Bill provides that the President of HREOC may terminate a complaint on any one of a number of grounds and, with one exception, this decision must be notified to each complainant in writing.

2.107 A complainant can only bring an application alleging discrimination in the Federal Court if the President has terminated the complaint and given the notice.

2.108 The Committee was told that if a complaint is terminated under s.46PE(1)(b) at the request of all the complainants (which must be the consent of all the affected persons) the President does not issue such a notice. Therefore, the matter could not proceed in the Federal Court.

2.109 The Attorney-General's Department has advised that this matter requires further consideration by the Government.

Recommendation No. 7:

2.110 HREOC was also concerned that, under the Bill, there is no procedure for HREOC to review termination decisions internally. Accordingly, if a party objects to a termination, it must seek review in the Federal Court under the Administrative Decisions (Judicial Review) Act.

2.111 The Committee raised this matter with the Attorney-General's Department. The Department advised in correspondence that HREOC's concerns could be covered by "internal administrative procedures", without amending the Bill.

2.112 In response, HREOC argued that the termination of a complaint will be a legal act, and that it could not be revoked under an internal review procedure as the Bill stands. To this, the Department advised that instead of making a termination decision, the President could foreshadow his or her provisional intention to terminate a matter. The President could then suggest that any party objecting to the proposed termination make submissions or objections on the matter before the President makes a formal decision.

Referring Discriminatory Awards

2.113 The Bill provides that a complaint in writing alleging that a person has done a "discriminatory act under an award" may be lodged with HREOC. The term "discriminatory act under an award" is defined as an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act was done in direct compliance with an award. If it appears to the President of HREOC that the act is discriminatory, the President must refer the award to the Australian Industrial Relations Commission (AIRC). There are similar provisions in relation to the referral of matters to the Remuneration Tribunal and the Defence Force Tribunal.

2.114 Mr Peter Bailey submitted that racially discriminatory acts under awards should also be referred to the AIRC. HREOC argued that the Bill should be amended to enable discriminatory acts based on racial or disability grounds also to be referred to the appropriate tribunal.

2.115 The Attorney-General's Department advised that the Government decided to keep the referral powers that currently exist under the Sex Discrimination Act, but not extend them to complaints of disability and race discrimination.

Notice of Federal Court Proceedings

2.116 HREOC submitted that applicants in Federal Court proceedings should be required to serve the special-purpose Commissioners, who have the function of appearing amicus curiae in certain matters, with initiating documents in the Federal Court so that the Commissioners know that proceedings have been commenced.

2.117 The Committee sought advice from the Attorney-General's Department on this matter. The Department drew the Committee's attention to s.46PP(3) of the Bill, which provides that the President may provide any member of the Commission with a written report on a matter that has been terminated by the President. The Department advised that "the report may serve to inform the respective Commissioners of proceedings in which it may be appropriate for them to appear as amicus curiae".

2.118 However, in a supplementary submission, HREOC argued that it would be difficult for the President to prepare reports on all terminated complaints, and in any event many terminated complaints will not go to Court.

2.119 The Committee notes HREOC's concern. However, the Committee is reluctant to impose an obligation on applicants to serve HREOC with initiating documents in the Federal Court. As an alternative, the Attorney-General could consider whether the Human Rights Registry of the Federal Court should inform HREOC of the filing of discrimination applications.

Recommendation No. 8: