Human Rights Bill

Chapter 3

Enforcing Discrimination Determinations

Provisions of the Bill

3.1 Proposed section 46PL(1) of the Bill provides that discrimination complaints may be pursued in the Federal Court where the President of HREOC has not settled the matter by conciliation and has terminated the complaint. It provides as follows:

If:

(a) a complaint has been terminated by the President under section 46PE; and

(b) the President has given a notice to a person under subsection 46PE(2) in relation to the termination:

any person who was an affected person in relation to the complaint may make an application to the Federal Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

3.2 Item 31 of the Bill proposes to insert section 18AB(3A) in the Federal Court of Australia Act, which would provide:

The Rules of Court may also delegate to Judicial Registrars, either generally or as otherwise provided by the Rules, any of the Court's human rights legislation powers. For this purpose, human rights legislation powers means powers of the Court in relation to proceedings in the Court arising under Part IIB of the Human Rights and Equal Opportunity Commission Act 1986, but does not include the power to grant an interim injunction under that Part.

3.3 Part IIB relates to redress for unlawful discrimination, and sets out procedures for race, sex and disability discrimination applications to be heard in the Federal Court.

3.4 In relation to proposed section 18AB(3A) of the Bill, the Explanatory Memorandum provides:

The term 'human rights legislation powers' means powers of the Court in relation to proceedings under new Part IIB of the HRA. In recognition of the Constitutional limitations on the delegation of judicial power, however, the term does not include all the Court's powers. In particular, the power to grant interim injunctions will not be able to be delegated.

3.5 The Explanatory Memorandum to the Human Rights Legislation Amendment Bill states that the Bill:

simplifies dispute resolution procedures in human rights matters by eliminating the second tier of review in HREOC, which was not directly enforceable;

provides that matters which cannot be conciliated will be dealt with in the Federal Court of Australia rather than HREOC;

provides that that the Federal Court will not be bound by technicalities or legal forms in considering proceedings brought before it under the Bill; and

enables the judges of the Federal Court to delegate some but not all of their functions in respect of discrimination claims to judicial registrars, "who would be able to assist with additional caseloads".

3.6 In his second reading speech, the Attorney-General advised that under the new procedure a complaint alleging unlawful discrimination under the Racial Discrimination Act, the Sex Discrimination Act or the Disability Discrimination Act would be lodged with HREOC. Upon acceptance of the complaint, namely a decision of HREOC that the matter is within jurisdiction, the President would inquire into the complaint and attempt conciliation. If the matter is not accepted as a complaint, review under the Administrative Decisions (Judicial Review) Act of the rejection would be possible.

3.7 The second reading speech also advised that at any stage after acceptance, the President will be able to terminate a complaint on specified grounds, for example on the ground that there is no reasonable prospect of the matter being settled by conciliation. If the President terminates a complaint, the President must notify the complainant in writing of that decision and the reasons for that decision. Once a complaint has been terminated by the President and a notice has been given by the President, a complainant will have 28 days or such further time as the Court allows to commence proceedings in the Federal Court should the complainant wish to do so. At the time proceedings are brought before the Court, or at any subsequent stage, any Commissioner, except the Privacy Commissioner, can, with leave of the Court, intervene as amicus curiae, and make submissions on such matters of law or policy as the Commissioner thinks fit.

3.8 The Attorney-General advised that the Federal Court will be given jurisdiction in relation to the complaints and will be able to make all appropriate orders, including interim injunctions, as the case required. The Court will be able to delegate some of its functions to judicial registrars.

3.9 In summary, under the Bill, discrimination matters will be heard in the Federal Court by judges or, if delegated, by judicial registrars. These procedures endeavour to overcome the problem raised by Brandy's case in respect of enforcing determinations.

3.10 Three significant issues were raised in evidence on the procedures contained in the Bill to enforce determinations in discrimination matters. These are:

constitutional implications;

practical implications; and

alternative forums for hearing discrimination matters.

Constitutional Implications

3.11 The Federal Court is a court within the meaning of Chapter III of the Constitution. Therefore, there is little doubt that judges of the Federal Court will have the power to hear discrimination matters and make enforceable determinations under the provisions of the Bill.

3.12 However, it should be noted that, under proposed s.18AB(3A) of the Bill, a judge of the Federal Court may delegate to judicial registrars the power to make determinations in both contested and uncontested discrimination matters, except applications for interim injunctions. The Committee received detailed evidence on the constitutional validity of delegating discrimination matters and, in particular, contested discrimination matters to judicial registrars. This evidence may be categorised as follows:

the status of judicial registrars;

delegating to judicial registrars;

constitutional validity of the proposed section of the Bill.

Status of Judicial Registrars

3.13 The Workplace Relations and Other Legislation Amendment Act 1996 amended the Federal Court Act to provide that judicial registrars are appointed for a period not exceeding five years, may be re-appointed and may be dismissed for misbehaviour or physical or mental incapacity without any requirement for a request from both House of Parliament. Appointment and re-appointment would be at the discretion of the Executive arm of Government.

3.14 Therefore, judicial registrars would not have the tenure and other protections given to judges by Chapter III of the Constitution. Tenure is seen as essential to the separation of powers, as it protects judges from political influence.

3.15 Although judicial registrars are not judges, the term "judicial" suggests that they might be expected to exercise more important powers than ordinary registrars. The Federal Court Act lists various subsidiary functions that may be delegated to ordinary registrars, such as dispensing with the service of process, making orders in relation to substituted service, making orders in relation to discovery of documents. In relation to judicial registrars, the Federal Court Act specifies matters they can hear by jurisdiction, subject to certain limitations.

3.16 The Constitution provides for the vesting of judicial power in the Federal Court as an entity, and allows for some delegation of certain powers to persons other than judges. However, Chapter III of the Constitution requires judges to have a high degree of control over the exercise of that power.

Delegating to Judicial Registrars

3.17 In Harris v Caladine the High Court upheld, by a majority of five to two, the delegation of power to a registrar to make a consent order, that is, an order putting into effect an agreement between the parties. The consent order concerned the division of property between husband and wife in a family law matter. In making its decision, the High Court also arguably upheld the validity of s.37A of the Family Law Act which said that judges of the Family Court could generally delegate their powers to registrars, except the power to make orders in contested proceedings regarding the dissolution of a marriage, the validity of a marriage, or custody, welfare, guardianship or access in relation to a child of a marriage.

3.18 A key factor in the Court upholding the delegation was the availability of rehearing de novo from the registrar's order to a judge of the Court. The availability of such a review was seen as necessary to ensure that the court acted judicially. The Committee notes evidence from the Attorney-General's Department that such a review will be available in respect of judicial registrar's decisions in discrimination matters.

3.19 The availability of a rehearing de novo may not always be enough to ensure that a delegation to a registrar is valid. Two of the majority judges in Harris v Caladine, Mason CJ and Deane J, observed that a delegation must not be to the extent that "it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court".

3.20 It has been suggested in the Australian Journal of Family Law that this requirement that "the judges constitute the court" does not restrict the subject matter which may be delegated to registrars, although it would be wise to confine delegations to subsidiary matters. However, the Committee has received evidence from Mr Peter Bailey of the ANU Law Faculty to the contrary. It is strongly arguable that Mason CJ and Deane J did in fact intend to restrict the subject matters that may be delegated. After setting out the requirement that the "judges constitute the court", they stated:

This means that the judges must continue to bear the major responsibility for the exercise of judicial power, at least in relation to the more important aspects of contested matters.

3.21 Mason CJ and Deane J also noted that s.37A of the Family Law Act, because it prevented registrars from hearing certain contested matters, did not transgress the limits set out in their judgement. Further, earlier in their judgement, they said:

We must emphasise that the role of the officers of the Court such as Judicial Registrars and Registrars is secondary to that of the judges. The role of the officers is to assist the judges in the exercise of the jurisdiction, powers and functions of the Court. Although it is a commonplace characteristic of modern courts that officers such as masters and registrars exercise jurisdiction, powers and functions in a wide variety of matters, those matters are, generally speaking, subsidiary in importance to matters which are heard and determined by judges.

3.22 If Mason CJ and Deane J did intend to restrict the subject matter that could be delegated, the difficult question is, what are the "more important aspects of contested matters"? Harris v Caladine arguably upheld s.37A of the Family Law Act. It would seem that, by not expressly excluding any property matters, s.37A permitted judicial registrars to make contested property orders. However, the order under consideration was made by consent, so the High Court did not need to state whether judicial registrars could make contested property orders. It is not clear from the judgements whether the issue was alluded to in argument. The Court did not issue a warning to the effect that registrars could not hear contested property matters.

3.23 In a letter to the Committee the Attorney-General's Department advised that "generally, judicial registrars hear less complex matters or those concerning only a small amount of money", and noted that complex matters can be sent back to judges. The Department has also advised that the sum involved "does not always indicate the importance or difficulty of the issues". The criteria for importance may really be whether a proceeding involves interpreting law or assessing the credibility of witnesses. Further, an order requiring something to be done, such as an order that a respondent re-employ an applicant, could be of greater importance to the applicant, and possibly of greater financial significance, than the damages claimed.

3.24 It should be noted that another member of the majority, Gaudron J held that "it is necessary to enquire whether powers and functions have been delegated to the extent that their judicial character is lost or to the extent that the body on whom they are conferred is no longer properly described as a court". Like Mason CJ and Deane J, Gaudron J arguably considered the limited nature of the powers delegated to have been relevant to some extent. The two other majority judges, Dawson and McHugh JJ, did not lay down guidelines about the kinds of matters that could be heard by registrars. Dawson J appears to have regarded this as a matter for the court. However, the two dissenting judges, Brennan and Toohey JJ, held that it was unconstitutional to delegate judicial power to registrars, even in relation to consent orders. Accordingly, it could be argued, taking into account the dissenting judgements, that a majority of the High Court in Harris v Caladine favoured some limitation on kinds of powers that can be delegated to registrars.

3.25 The Attorney-General's Department has advised that it is unlikely Harris v Caladine will be overruled, that is, it is unlikely the High Court will find that no judicial power can be delegated to registrars. However, the Department has noted that, given the recent trend of High Court decisions touching on the separation of powers, future High Court decisions in this area may take a narrower view of the extent to which judicial power can be delegated to registrars.

3.26 Therefore, it appears that there is some uncertainty regarding the extent to which matters can be delegated to judicial registrars.

The Constitutional Validity of the Proposed Section of the Bill

3.27 Apart from providing that judicial registrars cannot grant interim injunctions, proposed s.18AB(3A) does not seek to resolve this uncertainty. Essentially it leaves it to judges to determine what powers and functions can be delegated to judicial registrars. It does not require judges to delegate power, as this would clearly be unconstitutional.

3.28 The Attorney-General's Department has advised that:

Any delegation by the judges can be expected to comply with the constitutional requirement that the judges continue to bear the major responsibility for the exercise of judicial power, particularly in relation to the more important aspects of contested matters.

3.29 The provision apparently upheld in Harris v Caladine was also a general power to delegate although it exempted a number of kinds of contested matters. Gaudron J noted that the question is not the breadth of the Act purporting to authorise delegation, but rather whether the judge-made rules purporting to give effect to a delegation exceed the constitutional limits. On this basis it would seem that proposed s.18AB(3A) would have valid operation in that it would permit delegations that comply with the Constitution. To the extent that it did not, it would probably be read down by the High Court.

3.30 On the other hand, Mr Peter Bailey of the ANU Law Faculty has argued that the Bill "does seem to come very close to telling the Court how it should manage an important part of its business". He advised the Committee:

What may be the result if the Court decides not to delegate and then finds its business list lengthening? Will the Executive then say that, to save cost, the Court should delegate to registrars? It is easy to see progressive risk to the independence of the Judiciary arising, which is the very point addressed in Wilson [v. Minister for Aboriginal and Torres Strait Island Affairs (1996) 70 ALJR 743].

3.31 Mr Bailey's view may gain some support from the judgement of Dawson J in Harris v. Caladine, who observes that a federal court:

must be able to exercise a real choice for itself over those matters, if any, which are to be delegated. Effective supervision and control will not be maintained if there are insufficient judges for the purpose . . . Whether or not the exercise of judicial power is by or through the court itself will be a matter of practical as much as of theoretical judgement.

3.32 In this regard it is appropriate to question whether proposed s.18AB(3A) of the Bill is necessary if the Court has an inherent power to delegate or a general statutory power.

3.33 The subsection might otherwise be invalid if the High Court were to hold that all judicial power must be exercised by judges. This would mean completely overruling Harris v Caladine, which would seem unlikely.

Conclusions:

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, officers of 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.

Practical Implications

3.34 The Committee was told of a number of practical benefits in having discrimination matters heard by judicial registrars, including earlier hearing dates and reduced court costs.

3.35 However, it should be noted that these practical benefits may be short term because a party may seek to have the determination of a judicial registrar reviewed de novo, or at least on the facts and law, by a judge.

3.36 The practical benefit associated with the use of judicial registrars was questioned by the Queensland Law Society Inc and other submitters. They maintained that the Human Rights Legislation Amendment Bill 1996 fails to rectify a fundamental problem with the current legislation in that it perpetuates a two hearing process.

3.37 The Committee raised concerns about the two hearing process with the Attorney-General's Department. The Department recognised that the process may involve two hearings but emphasised that an initial determination of a judicial registrar will be enforceable, unlike the current legislation where initial determinations by HREOC are unenforceable. It observed:

The situation is, in fact, quite different in that decisions of judicial registrars which are subject to lawful delegation from the judges of the court, although subject to de novo review, will be enforceable as and when they are made, whereas decisions under the previous regime of the first level of determination were not.

3.38 Evidence also expressed concern about the potential for abuse of the automatic right to a rehearing, putting complainants to unnecessary expense and possibly forcing unfair settlements. In order to assess these concerns, the Committee considered that it would be useful to obtain information on the percentage of matters that are reheard in the Family and Industrial Relations Courts. The Attorney-General's Department advised that the rate of review decisions of judicial registrars decisions in unfair dismissal matter heard in the Industrial Relations Court was 21 per cent. The Department also advised:

No comparable statistics are available from the Family Court, however, in 1995-96 there were 351 applications filed for de novo review of a judicial registrar's decision.

3.39 In correspondence to the Committee, the Attorney-General's Department added:

it is not necessarily the case that the review of a decision will require a full re-hearing of the case. In the Family and industrial jurisdictions, there are Rules that allow the Court to receive as evidence the transcript, affidavits and exhibits relating to proceedings before a judicial registrar. If similar provision were made in relation to the human rights jurisdiction of the Federal Court, a full re-hearing would not be required, although the parties could be required to give further evidence. The Annual Report of the Industrial Relations Court of Australia indicates this occurred in 75% of review applications.

3.40 The Committee recognises that the nature and extent of a rehearing depends, at least to some degree, on the attitude of each of the parties. The financial capacity of each of the parties would also be relevant to a decision by one of them on whether or not to recall witnesses who had given evidence before a judicial registrar.

3.41 The Committee recognises that it will be beneficial for judges, at least in the short term, to hear all matters and establish a jurisprudence. This may well, in the longer term, reduce the potential for decisions of judicial registrars to be reviewed de novo. In response to a question from the Committee, the Registrar of the Federal Court said:

The court has already given some consideration to this issue of establishing some clear guidelines. Whilst it is yet to be confirmed in any great detail and will most probably be discussed at a judges meeting later this week, early indications are that the judges who have expressed an interest in this particular field are those who, as a result of that interest, have a specialisation. The judges will hear most of the first cases until it is clear that there is a line of authority and the common law, for want of a better term, has been more settled. . . . It would not be a good idea, I do not think, to have judicial registrars deal with all of the incoming cases first. It would be preferable to have judges deal with some of the cases to settle some of the common law early. Then it will be easier for judicial registrars subsequently to deal with those cases and the risk of de novo rehearings will diminish.

3.42 The Committee notes two other practical concerns associated with delegating discrimination complaints to judicial registrars. First, Resolutions Pty Ltd on behalf of the Australian Bus and Coach Association, told the Committee that "our experience to date with the Human Rights and Equal Opportunity Commission suggests that quasi judicial bodies are not altogether forthright in ensuring procedural fairness for those outside the interest groups they represent." The organisation registered its concern that "on this basis, we have some concern that the proposed registrars may act in the same manner".

3.43 Secondly, evidence suggested that judicial registrars and also judges of the Federal Court should receive training and be able to specialise in human rights matters. On this matter, the Attorney-General's Department advised:

Given the Court's wide jurisdiction, the benefits of specialised knowledge must be balanced against the need to retain the Court's ability to allocate judicial registrars according to its changing caseload needs. This flexibility is necessary to ensure that the Court's resources are most efficiently utilised for the benefit of all litigants in the Court. If the Court's human rights caseload becomes so large that further appointments are necessary, experience in discrimination law would of course be a factor when the Government considers making a new appointment.

Alternative Approaches to Hearing Discrimination Matters

3.44 A number of witnesses suggested that alternative approaches could be used in order to obtain enforceable determinations in discrimination matters. These alternative approaches were:

matters be heard by Federal Court judges only, and not by judicial registrars;

a Federal Magistracy; and

specialist tribunals.

Federal Court Judges

3.45 As has been noted, there are both constitutional and practical issues relating to the use of judicial registrars to determine discrimination complaints.

3.46 Mr Peter Bailey told the Committee that currently the number of cases proceeding beyond conciliation in HREOC is only about 40 or 50 a year. He recommended that complaints should be heard by judges and that provisions in the Bill allowing matters to be delegated to judicial registrars should be removed from Bill.

3.47 The Committee notes that the dissenting report of Senators Vanstone, Kemp, O'Chee and Walsh attached to the Senate Standing Committee on Legal and Constitutional Affairs' report entitled Review of Determinations of the Human Rights and Equal Opportunity Commission and the Privacy Commissioner, dated November 1992, expressed the view that "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 Senators concluded that the "most appropriate, most certain and, ultimately, least costly approach to dealing with such matters is to ensure that they are only determined once". According to the Senators, this would be achieved if determinations were made in the Federal Court.

3.48 The Committee notes that the objectives identified by the dissenting Senators will be achieved, in relation to the Human Rights Legislation Amendment Bill 1996, if Federal Court judges determine discrimination matters and cannot delegate these matters to judicial registrars.

Federal Magistracy

3.49 In its submission, the Australian Law Reform Commission noted that a judicial registrar's decision is reviewable de novo, and that this raises the prospect of matters being heard twice. The Commission indicated that it is keen to examine proposals being developed by the Attorney-General's Department for the establishment of a Federal Magistracy. According to the Commission, the option of federal magistrates employing flexible, informal procedures has "considerable promise as a long term solution to the problems raised by Brandy's case".

3.50 The Committee recognises the merits of this proposal, particularly if federal magistrates are appointed under Chapter III of the Constitution. Such appointments would avoid possible constitutional problems associated with the delegation of discrimination complaints to judicial registrars.

3.51 The Committee questioned the Attorney-General's Department about this proposal and was advised by Mr Richard Moss, Deputy Secretary, that a federal magistracy is being considered as a long term solution to the jurisdictional difficulties arising from Brandy's case. He said:

That is a proposal, as you say, that has been floated and has been referred to by the Attorney-General on one or two occasions. It is still under consideration and I regret that I really cannot take the matter any further at this stage except to say that if such a proposal did proceed then it would almost certainly be part of the proposal that judicial registrars would be replaced, if I can use that terminology, in some way, either immediately or by a gradual process as they retire, by magistrates. The proposal as floated would envisage magistrates taking the place of the judicial registrar system, but I have to emphasise that it is still under consideration and is at an early stage.

Recommendation No. 9:

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.

Specialist Tribunals

3.52 Some witnesses suggested that the Federal Court, as a court of general jurisdiction, would not necessarily be able to give a special focus and informality to discrimination matters.

3.53 A submission from the Women's Electoral Lobby preferred the use of specialist tribunals to the Federal Court, suggesting that the discrimination jurisdiction could be vested in a body similar to the Western Australian Equal Opportunity Tribunal. Similarly, a submission from Ms Beth Gaze, a senior lecturer in law at Monash University, favoured specialist tribunals. Her submission stated that the choice of enforcement through a specialised informal tribunal, namely HREOC, was made deliberately. She informed the Committee that experience in the United Kingdom has shown that generalist tribunals do not develop sufficient expertise in, or understanding of, this area. She concluded that a specialised tribunal is needed.

3.54 On the other hand the Queensland Law Society expressed concern about specialist tribunals, arguing that there is a perception that they assume the "colour" of the legislation creating them. This concern was also expressed in a submission on behalf of the Australian Bus and Coach Association.

3.55 Mr John Basten QC, a member of the New South Wales Bar, noted that the Commonwealth, under s.77(iii) of the Constitution, has the power to vest judicial determinations of matters in "any court of a State".

3.56 He advised the Committee that in his view the equal opportunity tribunals of New South Wales, Western Australia and Queensland were "courts" within the meaning of s.77(iii) of the Constitution, notwithstanding that appointments to these tribunals are not for life.

3.57 Mr Basten identified several advantages of conferring State tribunals with jurisdiction in discrimination matters. These include:

a reduction of duplication of tribunals and associated fixed costs;

matters would be dealt with by tribunals with specialist expertise;

matters could be heard under both State and Commonwealth law, which would avoid the suggestion that different results might obtain in a State as opposed to a Commonwealth tribunal or vice versa; and

informality.

3.58 He noted a potential disadvantage in that there may be differences of approach between jurisdictions. He suggested that the Commonwealth Government consider the possibility of cooperative arrangements.

Conclusion:

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.