A DEPARTURE FROM THE REPORT
I differ from the Committee's Report on the matter of whether the Racial
Discrimination Commissioner, the Sex Discrimination Commissioner and the
Disability Discrimination Commissioner should have power to inquire into
and conciliate matters brought to the Commission. I consider they should
have this power.
The President and The Power to Delegate
The Human Rights Legislation Amendment Bill 1996, if passed, will give
the President of the Human Rights and Equal Opportunity Commission the
power to inquire into and conciliate complaints about discrimination and
the contravention of human rights made under the Racial Discrimination
Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination
Act 1992 and the Human Rights and Equal Opportunity Act 1986. He or she
will be able to delegate this power in respect of any complaint to members
of his or her staff. He or she will be able to delegate his or her power
to hear complaints under the Human Rights and Equal Opportunity Act to
the Human Rights Commissioner. Other than this he or she will have no
power of delegation. In my view he or she should have the ability to refer
any matter which is brought before him or her, to any of the Commissioners
including the Sex Discrimination Commissioner, the Race Discrimination
Commissioner and the Disability Discrimination Commissioner for inquiry
and conciliation.
The Proposal to Centralise
I repeat the communication to the Committee from the Department of the
Attorney General set out in paragraph 2.26 of the Report.
It reads:
"The Bill does not .... allow the President to delegate complaint
handling to the Sex Discrimination Commissioner, the Race Discrimination
Commissioner or Disability 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."
A Confined Power to Delegate
The argument that the inquiry into and the conciliation of matters brought
before the Commission should be managed by the President alone so as to
ensure "a more efficient effective and consistent decision making
process" is weakened where the legislation allows him or her to delegate
any complaint to members of his or her staff and to refer one made under
the Human Rights and Equal Opportunity Act not only to them but to the
Human Rights Commissioner. (See paragraph 2.27 and paragraph 2.9 of the
Report).
Centralisation or Diversity in Decision Making
Efficiency, effectiveness and consistency in decision making is at least
as important within the Court system as it is within the Commission, yet
there is no suggestion that all cases should be decided by Chief Justices
alone.
There are other and better ways of obtaining these qualities than by
channelling all matters to one person or to one office. Over the centuries
many different courts have developed and maintained a body of law and
ways of administering it which have served Society well. A multiplicity
of judges has not denied efficient effective and consistent decision making.
More importantly it has generally delivered equity. Given that outcome
for judicial decision making it would be reasonable to adopt a like means
towards achieving good outcomes for inquiry and conciliation under this
legislation.
Quality. The Determinant of Good Decisions
The history of the Courts show that efficiency effectiveness and consistency
in decision making are more likely to result from the work of well resourced
institutions in which experienced sensible and highly qualified men and
women go about their tasks with industry and dedication, rather than from
the centralisation of functions into one entity.
The Office of Amicus Curiae A Passive One
The concept of "amicus curiae" is discussed in paragraph 2.32
of the Report. It is a function that can be exercised only at the request
of others. A person undertaking it must do so pursuant to a curial invitation.
The Latin phrase identifies him or her as a friend of the Court not of
any party before it. In fact an amicus curiae is commonly called upon
when one of the protagonists in a case lacks representation. But if there
is a prevailing assumption that the office of amicus curiae is one which
initiates and manages matters or is able to determine the amount and quality
of work coming to it then it is a wrong one.
The Role of Amicus Curiae
The Department of the Attorney General argues that each of the Commissioners
should be available to act as an amicus curiae in an appropriate case
before the Federal Court and that this makes it inappropriate for any
of them to inquire into and conciliate complaints brought to the Commission.
It is one thing for a Commissioner to act as an amicus curiae in a matter
with which he or she has already dealt as an inquirer or conciliator but
another where he or she has not. In my view it would be reasonable for
one Commissioner to inquire into and conciliate a matter when it is before
the Commission and for another Commissioner to act as amicus curiae when
that matter comes before the Federal Court.
No Constitutional Issue
It is constitutionally proper for the Commissioners to act as inquirers,
as conciliators and as people carrying out the task of an amicus curiae.
None of these functions are judicial in nature.
Enhancing The Commissioners' Standing
In my view giving the Commissioners the power to inquire into and conciliate
complaints will enhance their standing and enable them to carry out the
full range of their duties more effectively than where this is denied
them. Accordingly to give it to them will improve the quality of the Australian
human rights system generally.
Systemic Discrimination
People making submissions to the Committee stressed the importance of
the Commissioners being able to deal with systemic discrimination. Were
they to be given the power to deal with specific matters this would not
of itself diminish their ability to handle issues of broad principle.
In fact through dealing with discrete complaints the Commissioners are
likely to-become better aware of the impact a systemic vice has on those
who are its victims. To define the functions the Commissioners are to
perform on the basis that one of two distinct groups of alternatives must
be chosen for them is a false exercise. They can and, in my view should,
deal with a wide and diverse range of issues.
Who Should Report To Parliament
The Human Rights and Equal Opportunity Commission has recommended "that
the function of reporting to Parliament on unconciliated complaints under
the Human Rights and Equal Opportunity Commission Act 1986 should lie
with the Commission and not the President". (See its letter signed
by Sir Ronald Wilson dated 21 May 1 997).
In my view considerable weight should be given to this recommendation.
Given the Commission's functions and experience it is the body best placed
to give advice about the matter.
The Department of the Attorney General does not favour this strategy
because it would be inconsistent with the aim of centralising complaint
handling in the office of the President. Since I do not favour such centralisation
it is not a factor in my mind against giving the Commission the task of
reporting to Parliament on unconciliated complaints under the Human Rights
and Equal Opportunity Act 1986. I would accede to the counsel of Sir Ronald
Wilson in his letter to Senator Abetz the chairman of the Senate Legal
and Constitutional Legislation Committee dated 21 May 1997 and give it
that function.
Senator B Cooney