Human Rights Bill

Minority Report

Senator Andrew Murray

Australian Democrat Spokesperson for Law and Justice

The Australian Democrats are supportive of the scope of the Australian Labor Party's minority report, with the following observations:

The modern principles of democracy have long abandoned the simple notion that the mandate of the ballot box, legitimises all government action. Democratic principles also require the respect for human rights and the protection of minorities against the possible coercive and oppressive power of the majority, the powerful, the wealthy or just simply the strong. It is what distinguishes democratic and relatively free nations from that of oppressive and tyrannical ones. It is in essence, a system of checks and balances on the potential abuses of any arm of government or any sector of the community against a vulnerable group in the community.

At a national level at least, it has been recognised that equality should be afforded to persons regardless of the gender, race or disability. The Australian Democrats believe that this protection should be extended to that of sexuality and age in the immediate future.

The organisation charged with the national protection of Human Rights is the Human Rights and Equal Opportunity Commission (HREOC). The Australian Democrats believe it existence is instrumental to maintaining a functioning and healthy democracy and note with concern the large funding cuts which HREOC has had inflicted upon it, in the last Howard Government's budget. We add our support to the comments and conclusions of Senators Bolkus and McKiernan in this regard.

The Australian Democrats note that the proposed amendments contained in the Bill concerning the Brandy case, differ significantly from those Brandy amendments proposed in the currently tabled amendments to the Native Title Act 1993. The native title amendments create a structure whereby applications commence in the Federal Court and are immediately referred to the National Native Title Tribunal (NNTT) for that body to attempt to conciliate a negotiated agreement between the parties. Should that process not be successful, then the matter is already on foot in the Federal Court and can then be expedited to a hearing should the necessity arise.

The Democrats note the similarities of this process which is set down in the Family Law Act 1975. Under that Act, the parties who have filed their documents then participate in court sponsored mediation and/or counselling, can still have their matters heard by a Judge or judicial registrar should the need arise. The result is that many cases are settled by way of consent orders - minimising as far as possible , delays and costs to the parties concerned. It also provides a mechanism for enforcement of those orders.

In contrast the HREOC amendments seem to propose a process which lacks substance and does not alter the existing path for complainants. It is noted that the effect of the Brandy case has been to invalidate the determination function of the commission.

The Australian Democrats accept and acknowledge that the finding of the High Court in the Brandy decision serves to protect the separation of powers doctrine and therefore enhances the independence of the judiciary.

The challenge for the Parliament is to therefore create a determination and enforcement regime which is both equitable, efficient and constitutional.

Experience in the human rights jurisdictions in the United States and in comparable jurisdictions in Australia shows that costs are rarely awarded against unsuccessful applicants or complainants - unless there is a frivolous or vexatious component to the litigation

The Australian Democrats note that HREOC in its submission, agreed with the proposition that costs should be capable of being awarded in this jurisdiction.

The Australian Democrats support the recommendation of the Labor Senators regarding representative complaints by trade unions but recommend that this be extended to other representative organisations in the community as well. We note that such a provision has been included in the Democrats' Sexuality Discrimination Bill 1995, introduced to the Senate by Senator Sid Spindler.

The Australian Democrats note that the Sexuality Discrimination Bill will require minor amendments depending on the manner and form that amendments in this Bill will take.

Senator Andrew Murray