Human Rights Bill

APPENDIX 3

CORRESPONDENCE DATED 22 APRIL AND 2 mAY 1997 FROM THE ATTORNEY-GENERAL'S DEPARTMENT TO THE COMMITTEE

Attorney-General's Department

Department

22 April 1997

Mr Neil Bessell

Secretary

Senate Legal and Constitutional

Legislation Committee

Parliament House

Dear Mr Bessell

DEPARTMENTAL RESPONSE TO QUESTIONS ARISING FROM SENATE COMMITTEE HEARINGS

I refer to the letter from the Chair of the Committee, dated l9 March 1997, which enclosed a schedule of suggested amendments and comment arising out of the Committee' s review of proposed changes to the Human Rights and Equal Opportunity Commission Act and related legislation.

Please find attached a copy of the Department's response to the issues raised in that schedule. Responses to issues raised in the subsequent Committee hearing of 7 April 1997 have also been provided. A few questions relating to legal aid remain unanswered and responses to those will be provided shortly.

Yours sincerely

Richard Moss

Table of contents

ATTORNEY-GENERAL'S DEPARTMENT RESPONSE

Senate Legal and Constitutional Legislation Committee

Human rights Legislation Amendment Bill

ITEM 31 - Judicial Registrars

Why Judicial registrars?

The position of judicial registrar was designed to provide both the courts and litigants with a faster and more accessible means of resolving disputes through litigation. Generally, judicial registrars hear less complex matters or those concerning only a small amount of money.

The Bill allows the Court to delegate any of its powers, except those in relation to interim injunctions, to judicial registrars. The judges can make new Rules of Court for this delegation.

At present, there are no judicial registrars in the Federal Court. However the office of judicial registrar already exists in the Industrial Relations Court. Once the Industrial Relations Court of Australia's functions are transferred to the Federal Court, in accordance with the Workplace Relations and Other Legislation Amendment Act 1996, the office of judicial registrar will also be transferred to the Federal Court.

Constitutionality

In Harris v Caladine (l991) 172 CLR 84 a majority of the High Court upheld the validity of s 37A of the Family Law Act 1975 authorising the Family Court to delegate to Registrars all or any of a list of enumerated powers of the Court.

While the delegation of some part of the jurisdiction of a federal court to its officers is therefore permissible, the High Court has said that such delegation is subject to two conditions: that the judges continue to bear the major responsibility for the exercise of judicial power, at least in relation to the more important aspects of contested matters; and that the exercise of delegated power must be subject to full review by a judge of the court.

The provisions of the Bill are consistent with these requirements in that:

it will be for the judges to decide whether any powers should be delegated and, if so, which powers. 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;

judicial registrars will not be able to hear applications for interim injunctions; and

section 18AC of the Federal Court of Australia Act 1976 will provide for full de novo review by the Court, on the application of any party, of a judicial registrar's exercise of a delegated power.

The Parliament cannot require a federal court to delegate power to its officers. As noted above, under s 18AB(3) the judges of the Federal Court will decide whether to delegate any powers and, if so, which powers would be delegated.

The Federal Court already has power to make use of court officers to exercise some of its jurisdiction. Section 35A of the Federal Court of Australia Act 1976 empowers the Court or a judge to direct a Registrar to exercise a specified power or powers. Section 18AB of the Federal Court of Australia Act 1976 empowers the Court to delegate to judicial registrars powers in relation to proceedings involving certain claims and applications under the Workplace Relations Act 1996. The proposed provision with respect to the exercise by court officers of some part of the human rights jurisdiction of the Court is consistent with these other provisions.

Enforceability

While it is true to say that the decision of a judicial registrar is subject to review by a judge of the Federal Court, that decision is made under delegated judicial power. Therefore, unlike a determination of the Commission, it is enforceable in its own right.

Additionally, 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. (Annual Report 1996 @ p 53).

The final shape of Court procedures for dealing with human rights complaints remains a matter for the Court to determine. However, as the Federal Court has been given the power to determine matters in an informal manner and to develop procedures for human rights matters that are not overly technical in nature, similar Rules may be developed for matters heard by judicial registrars.

Does the Bill provide a sufficient statutory scheme for the appointment of Judicial Registrars? Is there a role for specialist Judicial registrars?

The Bill reflects arrangements that have worked well in the family law jurisdiction. The only substantive difference is that, because the Federal Court is not a specialist court, there are no statutory requirements for a potential appointee to possess expertise in any particular area of law. 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 considered making a new appointment.

Should there be some matters which can only be dealt with by a Judge?

Item 31 of the Bill specifically provides that the judges may make Rules of Court that delegate to judicial registrars, either generally or as otherwise provided by the Rules any of the Court's powers under the human rights legislation, except for the power to grant an interim injunction.

Therefore, it is ultimately a matter for the Judges to determine the circumstances in which the delegation to judicial registrars will be exercised, noting the limitation referred to above.

It can be expected that the Judges, if they exercise their power to delegate, will do so in accordance with constitutional requirements and therefore that they will continue to exercise the major jurisdiction of the Court. Furthermore, the Federal Court Act also allows a judicial registrar to transfer to a judge any matter he or she considers is not appropriate for him or her to hear (section 18AD). Also, before a judicial registrar commences hearing a case, a party to the proceedings may apply for the case to be heard by a judge. These sections allow cases that would normally be heard by judicial registrars to be heard by judges when complex issues arise.

What are the statistics for review of the decisions of judicial registrars in the Family Court? - (Taken as a Question on Notice).

The statistics available from the Industrial Relations Court of Australia suggest that a review application is filed in relation to just over 20% of its judicial registrars' decisions (Annual Report 1995-96 p. 53 ). Of these cases, 75% did not require a full re-hearing of the evidence as the material from the proceedings before the judicial registrar was relied upon. 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 (Annual Report 1995-96 p. 69).

Table of contents

ITEM 49 - PRESIDENT TO ASSUME FUNCTIONS OF THE HR COMMISSIONER.

Reporting to Parliament

See the response to Item 53 regarding the role of the President and the reasons for centralising complaint handling in that office.

Complaints currently dealt with under the Human Rights and Equal Opportunity Commission Act 1986 result in a report to the Attorney- General if such a complaint cannot be conciliated or otherwise finalised. Recommendations in Reports are not enforceable. This process differs from the current process for complaints alleging unlawful discrimination under the Sex Discrimination Act 1984, the Racial Discrimination Act 1975 and the Disability Discrimination Act 1992.

With complaints alleging discrimination, if conciliation is unsuccessful or otherwise inappropriate (or if the Sex Discrimination Commissioner or the Race Discrimination Commissioner considers that the act complained of is not unlawful), the matter is referred to HREOC for hearing.

The Bill removes the HREOC hearing phase in relation to complaints of alleged unlawful discrimination, however, apart from changes proposed to the President' s role in HREOCA complaints, HREOCA complaints will continue in accordance with the existing process.

The proposal to separate the conciliation and reporting phases of HREOCA 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.

ITEM 53 - LIMITATION ON DELEGATION OF PRESIDENT'S POWERS

The Bill aims to clarify the lines of management responsibility and facilitate timely decision making by providing for the better administration of the Commission, (see the Second Reading Speech for the Human Rights Legislation Amendment Bill, (the HRLAB). Integral to this process is the proposal to vest responsibility for all complaint handling in the President of HREOC.

The Bill does not therefore allow the President to delegate complaint handling to the Sex Discrimination Commissioner, the Race Discrimination Commissioner or Disability Discrimination Commissioner. To provide for such delegation would be contrary to the stated reasons for centralising complaint handling in one office, i.e. 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.

As centralisation would involve a significant increase in the responsibilities of the President, the Bill does not restrict the President's ability to delegate functions to the staff of the Commission, as occurs under the present arrangements. However, with the centralisation of responsibility for complaint handling, the complaints officers will be directed by, and report to, one central authority, i.e. the President.

The President also assumes the responsibility for handling human rights and equal opportunity complaints, however the President may, at her/his discretion, delegate these complaints to the Human Rights Commissioner. This is because there is a separate complaints process for such complaints, (see Item 49 above. These complaints, if unconciliated or otherwise not finalised, result in a Report to Parliament, the outcomes of which are not enforceable). Therefore, because of the different procedures and the inability to enforce the recommendations in a report in Court proceedings, the involvement of the Human Rights Commissioner in the handling of these complaints would not affect the proposed amicus curiae function.

ITEM 56

S 46P(1) - A complaint may be lodged with the Commission alleging unlawful discrimination .

Requirement that the complaint be in writing.

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, (see evidence of Commissioner Antonius @ 280: Senate Legal and Constitutional legislation Committee hearings on Tuesday 11 March 1997). 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.

Uniformity for human rights and anti-discrimination complaints

There is an important distinction between a complaint arising under Commonwealth anti-discrimination legislation and one which arises under the Human Rights and Equal Opportunity Commission Act.

Currently the Racial, Sex and Disability Discrimination legislation provides that certain conduct constitutes 'unlawful discrimination'. A complaint under these Acts, if substantiated, may lead to a Commission determination or Court order indicating that the alleged conduct was unlawful and providing certain remedies.

However, actions inconsistent with human rights or equal opportunity, as defined in the Human Rights and Equal Opportunity Commission Act, are not classified as unlawful. A complainant may seek to conciliate the matter at the Commission however if that fails, the only recourse is a report by the Human Rights Commissioner to the Attorney-General.

Part IIB of the new legislation sets out the process for dealing with complaints of 'unlawful discrimination'. It would therefore be inappropriate to refer also to complaints alleging actions inconsistent with human rights or equal opportunity as defined in the current Human Rights and Equal Opportunity Commission Act as they are not classified as unlawful and are dealt with in a different manner.

Applicant should be able to choose the forum

The requirement to proceed through the Commission before accessing the Court stems from a desire to provide an alternative mechanism for the resolution of complaints of discrimination that is both accessible and cost effective. As a matter of policy, the initial conciliation process undertaken by the Commission is to be retained. The requirement that parties participate in conciliation and seek to resolve disputes in a non-confrontational forum is consistent with the policy of successive governments.

The Commission conciliation process fulfils this role by resolving a large number of complaints through conciliation. In 1995/96 for example, the Commission's annual report indicates that well over 80% of complaints were finalised before recourse to formal Commission hearings or subsequent Court proceedings.

The Commission is a cost effective and efficient means of dealing with discrimination complaints in the initial stages. It is accessible, user friendly and avoids the need for recourse to the Courts and possibly lawyers until it is absolutely necessary.

HREOC states in its supplementary submission that 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.

Allegations of more than one form of discrimination in one complaint.

There is nothing in the legislation which would prevent a person lodging a complaint which alleged more than one form of discrimination. All that is required is that a complaint be in writing. The Bill specifically provides that the Commission must take reasonable steps to assist a person in formulating a complaint or reducing it to writing, (see proposed clause 46P(4)).

ITEM 56

S. 46P(2)(c) - A complaint may be lodged by a person or trade union on behalf of . . . another aggrieved by the unlawful discrimination.

Standing

The Bill does not limit the standing of other special interest groups to make a complaint on behalf of a person aggrieved by the alleged unlawful discrimination, nor does it reduce standing under the Disability Discrimination Act.

The Bill expands upon the class of people who may lodge complaints under the existing legislation. Under the Disability Discrimination Act, no specific provision is made at present for a trade union to lodge a complaint, (under the Sex and Racial Discrimination Acts, trade unions are specifically mentioned). Inclusion of a specific reference to trade unions as complainants in disability discrimination matters supplements the existing Disability Discrimination Act and brings it into line with the existing provisions of the Sex Discrimination Act and the Racial Discrimination Act.

The Disability Discrimination Act currently provides that a complaint may be brought by a person on behalf of another person or persons aggrieved by the act. This category of complainant is, under the Bill, to be e able to lodge complaints which may currently be made under the Sex Discrimination Act and the Racial Discrimination Act. To date, we are not aware of any difficulties experienced by advocacy groups utilising this provision. The aim of the Bill is to provide uniformity in provisions governing lodgement of a complaint of unlawful discrimination.

Table of contents

ITEM 56

S. 46P(4) - HREOC to take reasonable steps to assist a person wishing to make a complaint.

Provision of legal advice by HREOC

The provision of legal advice by the Commission is inappropriate given the Commission's continued (and impartial) role in conciliation of complaints. It is also inconsistent with the proposed amicus role for special purpose Commissioners and the existing intervention role, which is to be retained.

In addition, Legal Aid Commissions, and designated Community Legal Centres already receive funding for the provision of legal assistance for federal matters.

The provision of translator and interpreter services is a matter for the Commission. (See also clause 46P(4) and evidence of Commissioner Antonius @ 280: Senate Legal and Constitutional Legislation Committee hearings on Tuesday 11 March 1997.)

ITEM 56

S. 46PA & PB - Representative complaints

For responses to questions on representative complaints and proceedings, see clause 46PL.

ITEM 56

S. 46PC - Transfer of complaint handling to the President

Responsibility for all complaint handling vested in the President

See response to item 53.

Commissioners may be deemed a complainant in certain circumstances

The government's policy is that only the person affected by the discrimination is eligible to make an application to the Federal Court. The provisions which previously deemed Commissioners to be complainants are to be repealed.

ITEM 56

S. 46PD(3) and (4) - Complaint cannot be amended after termination by the President under proposed 46PE

As a general comment, a distinction should be made between amendment of a complaint and the particulars of an application filed in the Federal Court.

The proposed provisions relating to amendment of a complaint apply up until the complaint is terminated by the President. A complaint cannot be amended after it is terminated by the President (proposed 46PD(4). A proceeding in the Federal Court is not a continuation of a 'complaint', rather, termination of a complaint is a condition precedent to commencing proceedings in the Federal Court (see proposed 46PL(1)(a) in particular).

Issues raised in this context appear to be as follows:

The Bill may prevent amendment of a complaint in HREOC to add additional or the correct respondent(s). An application in the Federal Court may only allege unlawful discrimination by one or more of the respondents to the terminated complaint.

Proposed 46PD(4) specifically provides that, with leave of the President, any complainant or respondent may amend the complaint to add, as a respondent, a person who is alleged to have done the alleged unlawful discrimination.

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. The HREOC inquiry/conciliation process should facilitate identification of the correct respondent(s). However, any such amendment cannot occur after termination of the complaint (see proposed 46PD(4)). Additionally, any application filed in the Federal Court must, by virtue of proposed 46PL(1), be against one or more of the respondents to a terminated complaint.

Since the Court is not bound by technicalities, an affected person's application may not be prevented by mere technical or formal errors in the description of the respondent to the complaint. The facts of each case will determine whether it is appropriate and fair for such allowances to be made.

To provide otherwise would be inconsistent with the policy that complaints of unlawful discrimination proceed through the inquiry/conciliation process in HREOC before an application is made to the Court.

The complaint should be able to be amended in terms of content while it is before HREOC. In effect this appears to mean 'identifying the acts of alleged unlawful discrimination'

There is nothing in the Bill which requires that a 'complaint', at the time of lodgement, particularise every aspect of alleged unlawful discrimination. It may be that 'a complaint' considered by the President is comprised of a number of letters which are lodged with HREOC throughout the course of the HREOC phase of inquiry. We understand that this is not unusual under the existing legislation, which contains no specific power to 'amend complaints'. Additionally, proposed 46PD (2) provides that if the President thinks that 2 or more complaints arise out of the same or substantially the same circumstances or subject, the President may hold a single inquiry, or conduct a single conciliation, in relation to those complaints.

The informal nature of HREOC proceedings and the particular nature of conciliation proceedings provide a process by which the parameters of the 'complaint' may be identified.

If there is any doubt, it is always open to a complainant to lodge a new complaint, for example, this may be appropriate because some of the acts occurred more than 12 months prior to the lodgement of the initiating complaint.

Proposed 46PD(2), in combination with the informal nature of HREOC proceedings should overcome any difficulties that may arise in relation to identification of additional acts of unlawful discrimination which are not alleged in the original complaint.

Allegations of acts of unlawful discrimination which occur subsequent to termination of the complaint by the President.

It would be inconsistent with the policy of requiring complaints of unlawful discrimination to proceed through conciliation to permit these allegations to be included in any application made to the Federal Court in respect of earlier acts which have been included in a terminated complaint. It is open to HREOC to implement administrative procedures to facilitate 'fast-tracking' of any such complaint to permit addition of those allegations in any application to the Court, if to do so would be permitted by or be consistent with, proposed 46PL(l), (2) and (3).

It has been claimed that it is impractical to make a complainant who is victimised subsequent to termination of the complaint, lodge a new complaint in HREOC, because it is likely that the victimisation complaint will not be amenable to conciliation. However, in these circumstances, it is open to HREOC to implement administrative procedures to 'fast-track' the victimisation complaint, which may then be terminated on the ground that there is no reasonable prospect of the complaint being terminated (noting that the decision to terminate and the ground of termination are matters entirely within the discretion of the President).

Application to the Court

Once a complaint has been terminated, an affected person may file an application with the Court. The Bill provides that the unlawful discrimination alleged in an application need only be the same in substance as the unlawful discrimination alleged in the Commission, or arise out of substantially the same act, omissions or practices that were the subject of the terminated complaint. This is intended to be, and is, a wide test that will allow applicants to refine their grounds of complaint when proceedings in the Court are contemplated. The Explanatory Memorandum to the Bill provides one useful example of when such refinement may be necessary.

In view of the above factors, it is not considered necessary to amend the bill as recommended by HREOC.

Table of contents

ITEM 56

S. 46PE - Termination of complaint by President

Respondent resiles from conciliated settlement

Under both the existing and proposed schemes it is possible for a respondent to refuse to comply with a conciliation agreement.

A complainant could re-lodge a complaint with the Commission. The complaint would then proceed as normal. If the President was of the view that the earlier breach of the conciliated agreement indicates the matter cannot be successfully conciliated a second time, s/he may terminate the complaint under new section 46PE(1)(j). This would have the effect of fast tracking the complaint and allowing an application to be made to the Federal Court.

'Aggrieved' and 'affected' parties

The relevant distinction is in fact between 'complainant' and 'affected person'. An 'affected person' is one who alleges they have been treated in a discriminatory manner. A 'complainant' may be alleging they have been the subject of discrimination or they may simply be bringing proceedings on behalf of another person who alleges unlawful discrimination. The distinction is explained at Paragraph 61 of the Explanatory Memorandum.

The distinction is particularly relevant if it becomes necessary to commence proceedings in the Federal Court. Only an 'affected person' can commence such proceedings.

Such an arrangement addresses concerns about proceedings being commenced in the Federal Court (apart from representative proceedings under Part IVA of the Federal Court Act) by a person or body on behalf of persons aggrieved, where that person or body is not bringing the complaint solely on their own behalf. To enable 'complainant's' as defined in the Bill, to commence proceedings in the Federal Court, would lead to the prospect of orders being made affecting the rights and obligations of parties who may not have participated to any degree in the proceedings.

While admittedly this restricts those who can bring complaints before the Federal Court, the changes are ameliorated by the provision dealing with representation in the Federal Court. Under this provision a person may, in general, be represented by a person other than a Barrister or Solicitor. This would allow a person who had brought a representative complaint at the Commission stage to continue with the matter in the Federal Court should the 'affected person' agree and the Court consider them an appropriate representative. In this regard, one should also note the provisions of the Federal Court Rules dealing with proceedings by or against 'a person under disability'. The Rules provide that a person under a mental disability may bring or defend an action in the Federal Court through a 'committee' (which includes a person entrusted under law with the care or management of the person or the estate of the mentally disabled person) or a 'next friend', (ref. Order 43, Federal Court Rules).

Clause 46PE(3) should reflect the wording of 46PE(1)(b)-HREOC supplementary submission

Requires further consideration by the Government

Termination notice should indicate right of review

This is an administrative matter for the Commission.

Review of decisions to terminate a complaint -there should be an internal review process instead of costly AD(JR) proceedings

The President's exercise or failure to exercise his or her powers under the termination provisions would be subject to judicial review whether or not an internal review process was instituted by HREOC.

HREOC recommends that some additional flexibility be inserted into Clause 46PE to allow inadvertent errors in the termination of a complaint to be corrected as appropriate without the need for recourse to AD(JR) proceedings. The addition of a power to revoke a termination as suggested raises the prospect of a further judicial review proceedings. Should the Commission believe that further review mechanisms are appropriate, this is a matter for the internal administrative procedures of the Commission.

Grounds for termination (generally)

These grounds are modelled on s. 71 of the Disability Discrimination Act, however proposed 46PE(l)(i) and (j) are additional grounds upon which a complaint may be terminated.

'Termination' is defined to mean, in relation to a complaint, a decision to decline to inquire into the complaint, or to discontinue an inquiry into the complaint.

Termination is also an essential prerequisite to the initiation of proceedings in the Federal Court, in that the notice issued by the President is a precondition to initiation of Federal Court proceedings.

The President's exercise of/failure to exercise, his or her power under s46PE would be subject to judicial review.

The grounds set out will ensure the President has the requisite powers to deal appropriately with all complaints, especially representative complaints and those that are frivolous or misconceived.

Discretion to terminate where a complaint is lodged more than 12 months after the alleged unlawful discrimination occurred

Inclusion of this ground (which is based on s71(2)(c) of the Disability Discrimination Act) will not lead to complainants being disadvantaged in circumstances in which it is unclear when the discrimination occurred (for example, it may be a course of conduct). The provision does not require that a complaint be terminated. It provides the President with a discretion to terminate a complaint. There needs to be a period after which people have a reasonable expectation that they will not be exposed to a complaint. It is a matter for the President to determine the weight to be placed on this factor.

Ultimately the termination of a complaint is at the discretion of the President and subject to appropriate review. If a complaint is terminated, the affected person will be able to pursue the matter in the Federal Court.

There should be government financial assistance to one or both parties if a complaint is terminated at conciliation on public interest grounds.

Parties can apply for such assistance under the proposed scheme, (see clause 46PR).

ITEM 56

S. 46PF(5) - Right to inspect documentation-can a complainant or an affected person inspect documents

The paragraph is a standard provision 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. Take for example a legal document such as a mortgage. A creditor, debtor or joint owner may be entitled to inspect the document. This provision allows them to do so when and as required.

Documents may also be accessed under Freedom of Information legislation. This provision provides an additional avenue for accessing documents which have been obtained by the President pursuant to clause 46PF, i.e. the President's power to require production of documents which may be relevant to the inquiry process.

Access by a complainant would depend on whether, the complainant would otherwise be legally entitled to access or inspect the documents.

The provision is substantially the same as appears in the current legislation, (see for example, ss. 54 SDA, 73 DDA and 24 RDA) and we see no reason to expand the provision as suggested by HREOC in their supplementary submission.

ITEM 56

S. 46PH - Proceedings at a compulsory conference

Conciliation proceedings must remain confidential

In a proceeding in the Federal Court, a statement made at, or in connection with, a conciliation, would be covered in any event by settlement negotiation privilege under s. 131 of the Evidence Act 1995. If the Evidence Act does not apply, 'without prejudice' privilege would apply.

A conciliated settlement should be reduced to writing

This is a matter for the parties involved in the dispute. To require that all conciliated agreements be reduced to writing is not conducive to encouraging resolution of complaints in an informal manner.

A conciliated settlement should be recorded in de-identified form and included in HREOC Annual Report

It would be difficult to effectively de-identify many cases and still ensure that the remaining information was useful.

Decisions of the President should be enforceable against Commonwealth agencies as is done in the Privacy Act.

Under the proposed regime the President does not make determinations or decisions requiring enforcement. This is a consequence of the proposed removal of the HREOC phase of hearing/inquiry and recourse to the Federal Court should a decision be made to pursue the matter. In this context. there is no reason for imposing a separate enforcement regime on respondents who are Commonwealth agencies. The Bill aims to implement a uniform regime for all respondents, whether they are Commonwealth, or non Commonwealth entities.

46PH(4)- A person should be able to bring a 'next friend' to a conciliation conference

46PH refers to proceedings at a compulsory conference. If a compulsory conference is convened, attendance and representation at the conference are matters left to the discretion of the person presiding at the conference (see proposed 46PH(4) and 46PH(2).

ITEM 56

Table of contents

S. 46PJ(3) - Refusal to give evidence and self incrimination

The new uniform scheme provides that it is a reasonable excuse for an individual to refuse or fail to answer a question or produce a document on the ground that to do so might tend to incriminate that individual or expose the individual to a penalty. This provision picks up subsection 23(3) of the existing Human Rights and Equal Opportunity Commission Act 1986 in much the same form, but alters the position in relation to complaints of sex, race and disability discrimination where self incrimination is not currently a reasonable excuse for failure to provide information or produce a document. Under the existing law, it is a reasonable excuse for a person to refuse or fail to answer a question or refuse to produce a document, at a HREOC hearing, on the ground that to do so might incriminate the person.

There are a number of reasons why this change has been made. First, 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. This general principle can be abrogated if there is an over-riding need to ascertain the true facts of a matter. This is the case in Royal Commissions and similar inquiries. Where the principle is set aside, there is generally a restriction on the use of such information in any subsequent proceedings.

It cannot be argued that complaint handling proceedings in the Human Rights and Equal Opportunity Commission equate to a Royal Commission or like proceedings.

The second reason for maintaining these provisions relating to self incrimination is that the Commission's complaint handling procedures seek to resolve complaints through conciliation, that is, where both parties agree to an appropriate remedy. It would seem strange therefore 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 then be able to amicably settle their dispute.

ITEM 56

S. 46PI - Penalty for failure to attend a compulsory conference

This provision is not new. It simply picks up the current regime in the Racial, Sex and Disability Discrimination Acts, (see ss. 27A RDA, 55 SDA, 108 DDA).

ITEM 56

S. 46PL(1) - Application to the Federal Court

Standing in the Federal Court of a person who is 'not affected'

Refer oral evidence by the Department 11 March 1997.

Fees in the Federal Court

After carefully considering the matter, the Government has decided as a matter of policy that the usual rules in relation to fees will apply in discrimination proceedings commenced in the Federal Court. These rules do not permit postponement.

The existing situation regarding fees in HREOC is being maintained (i.e. there is no fee for lodging a complaint alleging discrimination). However, under the current scheme a person seeking to enforce a determination of HREOC would already have to pay the usual court fees.

It is considered that the existing provisions relating to waiver of, or exemption from fees already provide a sufficient safety net to deal with people who would not otherwise be able to afford fees. (See evidence by Mr Duggan at page 264 of the transcript, 11 March 1997 and Mr Soden at page 317 of the transcript, 7 April 1997.)

Costs in the Federal Court

Again, as a matter of policy and after giving careful consideration, it has been decided that the usual rules in relation to costs will apply to discrimination proceedings in the Federal Court. The Court has a general discretion to award costs. Usually, an award of costs would follow the event, i.e. they are awarded to the successful party. However, the special circumstances of a case may lead to another order being made.

Under the current system, a person seeking to enforce a determination of HREOC would be subject to the Court's current discretion to order costs. The existing situation in relation to costs during the HREOC phase of complaint handling is to be maintained. That is, HREOC has no power to order costs.

The Bill's proposed removal of the HREOC hearing function may have the effect of reducing the costs currently incurred by parties, particularly where further action would have been required to enforce a HREOC determination.

The Bill allows a person involved in Federal Court proceedings to apply to the Attorney-General for the provision of financial assistance in respect of the proceedings. It also contains a number of initiatives designed to reduce formality in the court. This may lead to less reliance upon legal representation and a consequent reduction of the potential for an applicant to be subjected to the risk of an adverse costs order.

How would the system work if the costs that could be charged by solicitors were restricted to party/party costs?

Costs that are charged by solicitors are generally divided into party/party costs and solicitor/client costs. The party/party costs are standard costs that are set by the relevant court exercising jurisdiction in the matter. These are recoverable from one party by another party with a costs order in its favour. Solicitor/client costs are those costs that a solicitor charges a client according to any agreement that has been made between them.

For example, a solicitor and client may agree that the client will pay costs in a litigated dispute according to the amount of time that was spent working on a case and the seniority/expertise of the solicitor performing the work. However, to the extent that these exceed the party/party scale costs, an unsuccessful party would not be liable to pay if the usual order for costs was made by the court. The unsuccessful party would only be liable, unless the court specifically ordered otherwise, to reimburse the standard party/party scale costs.

This ensures that unsuccessful parties are not unfairly required to meet the costs of very expensive lawyers charging on, for example, a time-costed basis. The difference between the successful litigant's party/party costs and its solicitor/client costs is payable by the successful litigant.

It was considered that the main advantage of allowing the normal costs rules to apply is that more lawyers will be encouraged to represent applicants in human rights disputes. Although the informality of proceedings in the Court should help to reduce the overall need for lawyers, there will be some more complex matters where legal representation is desirable. ln such litigation, the overall costs may be reduced if parties can be legally represented.

It is not possible to estimate accurately the effect on levels of legal representation that a ban on the charging of solicitor/client costs would have in the human rights jurisdiction. However, given that lawyers are more likely to become involved in human rights matters at the complex end of the scale, it was considered that it could be a significant discouragement if a blanket restriction on solicitor/client costs was adopted. Also, unlike large jurisdictions (such as workers' compensation where this type of restriction does exist), it is unlikely that a significant number of lawyers will be practising in the area. This means that the costs for lawyers in general practice who do take on human rights matters could be expected to be higher than jurisdictions in which they routinely appear. Routine court appearance work, and any cost efficiencies that may follow from that, is made even more unlikely given the possibility that, in simple discrimination cases, legal representation may not be the norm.

Conclusion: The proposed scheme in relation to costs and fees strikes an appropriate balance between the need to provide people with access to a remedy for discrimination, and the desirability of parties thinking seriously about the manner in which they conduct themselves during the course of the complaint once it becomes necessary to consider involvement in Federal Court proceedings.

Can an applicant with a non-lawyer representative seek costs under the present Federal Court rules?

In accordance with the policy of applying the usual rules in relation to legal costs to discrimination proceedings in the Federal Court, a person who is not represented by a lawyer would be considered to be unrepresented for the purposes of determining any entitlement to an order for costs. The Court's discretionary power to order that a party's legal costs are to be paid by another party will not be extended to include any costs charged by a non-legal advocate. The existing scales of costs set by the Court are confined to the legal profession.

Alternative costs regime - proposal by Mr Basten QC

The Government was aware of proposals for alternative costs regimes and took this into account in determining policy. Provision for a specific costs regime for human rights matters in the Federal Court was rejected on the ground that there is nothing so different about these sorts of cases that would merit special measures regarding costs.

Termination of complaints on the ground that they are frivolous or vexatious provides a means of fast-tracking a complaint and may allow an unfair advantage.

Some mechanism is required to deal with complaints which are frivolous, vexatious, misconceived or lacking in substance, and, consistent with the scheme proposed, the Bill provides that such complaints may be terminated by the President. Although a consequence is that an application may then be made to the Federal Court, a party who makes such an application runs the risk of an adverse costs order.

Section 46 PL should be amended to provide that HREOC Commissioners be served with initiating documents for matters going to the Federal Court.

The provision allowing the President to prepare a report on the terminated complaint serves a number of purposes. The Bill provides that the President may give a copy of the report to a relevant member of the Commission. Thus, the report may serve to inform the respective Commissioners of proceedings in which it may be appropriate for them to seek to appear as an 'amicus curiae'. Ultimately, resolution of problems in this regard are matters for administrative procedures to be developed by HREOC and the Federal Court.

The Bill does not require the court to provide interpreters or other facilities.

Provision of these services is a matter for the Federal Court.

However the Bill provides that a person may be represented before the Court by a non-legal advocate unless the Court considers that such representation is inappropriate in the circumstances. This provision will enable, for example, litigants who have a speech or hearing impairment, and require the assistance of another person, to have a non-legal advocate.

Court should be fully accessible

We understand that the Federal Court has discussed this and related issues with HREOC and in this regard we refer to matters raised in the Federal Court's submission dated 10 March 1997 and to oral evidence by Court Officers on 7 April l 997

The Attorney-General's Department is also currently undertaking a disability access audit of the Federal Court premises. This is designed to ensure that Federal Court buildings comply with the Commonwealth Disability Strategy.

Representative Complaints. (Clauses 46PA, PB AND PL)

The issues raised in the context of representative complaints are as follows:

a) there should be amendments to ensure synchronicity between s33C of the Federal Court Act (which permits a representative proceeding to be brought on behalf of a group of at least seven) and proposed s46PA of the Bill (which, together with proposed 46P, would allow a representative complaint to be brought where there are two or more people in the class);

b) amendment to the Federal Court Act to provide that human rights representative proceedings only need to fulfil the same requirements as those under the Bill for a representative complaint;

c) representative actions may not be possible if the circumstances vary slightly from complainant to complainant- this is particularly so in relation to people with disabilities making complaints as adjustments required may vary very slightly from complainant to complainant;

d) repeal of sections in the Disability Discrimination Act, the Sex Discrimination Act and the Racial Discrimination Act allowing for replacement of a complainant means that the Bill does not provide for representative complainants to be replaced with the consent of the President. As a result the withdrawal of the complainant on the record would result in the complaint being terminated

e) question asked by Senator McKiernan on 7 April 1997. The question appears to raise 2 issues;

First, 'if the presiding member of HREOC issued a decision on a class action where there were only three or possibly four people involved in it - but less than seven- and the individual s wanted to take it further to the Court, could they extend the numbers who were complaining?'

Second, if they did so, 'would the extension of numbers be taken to be amending a complaint?'

f) s. 33 of the Federal Court Act, in combination with s33L, may mean that the Court has a discretion to enable commencement of representative proceedings of less than seven- therefore, s33L be amended to make it clear that the Court has a discretion to allow representative proceedings to be commenced, with the leave of the Court and on such conditions as the Court thinks fit, when there are less than seven group members; and

g) Notice provisions under the existing anti-discrimination legislation are problematic- concerns about how the Federal Court rules will work .

Provisions in the Federal Court of Australia Act dealing with representative proceedings should be modified - see (a) and (b) above

There is nothing inherently different about representative proceedings in human rights/anti-discrimination matters which would justify a separate regime.

There is no reason for the minimum numbers for a representative proceeding in the Federal Court and a representative complaint under the Bill to be the same.

The conditions for bringing a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 are set out in s. 33C of that Act. These requirements are similar, but not identical to, the criteria set out in the Bill.

Under s.33C one or more persons may commence a representative proceeding on behalf of a group of persons, which is at least 7 in number, if:

- the persons have claims against the same person;

- the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

- the claims of all those persons give rise to a substantial common issue of law or fact

Of course, all the members of the group must be persons who could bring an individual proceeding against the respondent. A person whose cause of action accrues after a representative proceeding has been commenced can be added to the group by leave of the Court under s.33K on application by the representative party.

Section 33L deals with the situation where a representative proceeding has been properly commenced but the number of group members subsequently falls below 7.

Under s.33L the Court has a discretion to order that the action continue as a representative proceeding, or that it no longer continue as a representative proceeding. In the latter case, under s. 33P group members may apply to be joined as applicants in the proceeding..

A representative proceeding is necessarily more complex, and therefore more expensive than an ordinary proceeding. It is, however, simpler, quicker and cheaper than a large number of similar individual proceedings.

The requirement for 7 group members is necessarily, to some extent, arbitrary, but it represents a considered assessment of a number below which it is likely to be preferable to use joinder or consolidation of actions to deal with similar claims rather than a representative proceeding.

The lower figure in the Bill for a representative complaint is a number which represents an assessment that the balance of convenience for a representative complaint favours a smaller number.

Section 33H of the Federal Court Act sets out criteria for matters to be included in an originating process. The requirements for a complaint in the Commission are less onerous in that they do not require common issues of law and fact to be specified, (proposed 46PA).

It is essential that this information be specified in a representative proceeding so that the Court and the parties know what issues the Court is to determine in the proceeding. Complainants are presumably able to identify common issues at least in general terms, otherwise they could not bring a representative complaint. The proceedings before HREOC may serve to refine these issues, prior to commencement of any representative proceedings in the Federal Court.

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Paragraph (c) Representative actions and people with disabilities

The fact that a person with a disability may require a slightly different remedy/reasonable adjustment does not affect whether a number of complaints may proceed as a representative complaint in the Commission. The relevant question is whether the various complaints involve common issues of fact or law arising out of the same or similar circumstances.

Paragraph (d) - withdrawal/ replacement of complainant on the record

Requires further consideration by government.

Paragraph (e)- question from Senator McKiernan

It is perhaps misleading to refer to amendment of a complaint in connection with a proceeding in the Federal Court. A proceeding in the Federal Court is not a continuation of a complaint under proposed section 46PL. In the Bill, termination of a complaint is a condition precedent to bringing a proceeding in the Federal Court.

In the context of a proceeding under proposed section 46PL it is immaterial whether the relevant complaint (or complaints) before HREOC was (or were), or included, a representative complaint.

Certainly, a person who is within the description of the class for the purposes of a complaint to HREOC may be included in a representative proceedings commenced in the Federal Court by an affected person involved in the HREOC proceedings. Proposed 46PA(3) provides that in describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are. If a person is within the class, and other criteria regarding representative complaints are satisfied, then upon termination, an affected person may ask for a termination notice.

If a representative complaint is made to HREOC and is terminated, subsequently a representative proceeding may be brought (in respect of the same (or substantially the same) discrimination arising out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint) on behalf of some or all members of the class on whose behalf the representative complaint was made. But the group in a representative proceeding need not be limited to such persons. It can include other persons who have a termination notice in respect of the same discrimination etc, by virtue of having made individual complaints, either before or after the making of the representative complaint.

It is possible for persons to be added to the group after a representative proceeding has been commenced. A person whose cause of action accrues (that is, in this context, receives a termination notice) can be added to the group by leave of the Court under s.33K on application by the representative party.

A difference in the composition of the class in a representative complaint and the group in a subsequent representative proceeding would not amount to amendment of a complaint. This addresses the second part of Sen. McKiernan's question.

Para (f). Amend s33L of the Federal Court Act to correct ambiguity and permit representative proceedings to be commenced in the court in certain circumstances when there are less than seven group members.

HREOC's supplementary submission recommends amendment to s33L of the Federal Court of Australia Act to remove a 'slight ambiguity' and make it clear that the Court has a discretion to allow representative proceedings to be commenced with the leave of the Court and on such conditions as the Court thinks fit, when there are less than seven group members, for the reasons set out in para 5 of that submission.

There is no ambiguity in the relevant provisions of this Act. The reasons for maintaining the existing requirements in Part IVA of the Federal Court of Australia Act are referred to above in response to items (a) and (b).

Paragraph (g) - Notice provisions applying to representative complaints are unworkable in HREOC. Query how the Federal Court rules will work in this regard?

Notice provisions are necessary where proceedings are capable of affecting the rights of others not directly involved in the proceedings. The notice requirements relating to representative complaints in HREOC are at the discretion of the President (see clause 46PB). Note also, the notice provisions in Part IVA of the Federal Court Act do not require the provision of a notice personally to each group member unless the court is satisfied that it is reasonably practicable and not unduly expensive to do so, (see s. 33Y(5)). Also, notice may be dispensed with by the Court where the relief sought does not include damages.

ITEM 56

Clause 46PL(4) - Court orders

Courts should be able to make general orders relating to the respondent's policies and practices generally, not simply in the manner they affect the complainant.

The Bill provides that the Court may make such orders as it thinks fit where it is satisfied that there has been unlawful discrimination. The particular types of orders set out in the Bill are illustrative only of the types of orders that may be appropriately made.

The Court is required by the Federal Court Act to make such orders as it thinks appropriate so as to finally dispose of all matters in controversy between the parties. The Bill does not therefore change the existing powers of the Federal Court in relation to the orders it may make.

The Court's orders are only binding between the parties to the proceedings. However, it may be that the practical impact of those orders goes beyond the individual(s) alleging discrimination. That is, the decision of the Court will have precedent value and should encourage a respondent to change any discriminatory policy or practice - or risk further action from other people aggrieved by that same policy or practice.

Other mechanisms exist for exposing and addressing systemic discrimination - for example, 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.

An applicant should have an easy mechanism to enforce a court order which does not require another hearing.

Enforcement of a court order would not require another hearing of the complaint of unlawful discrimination. A successful complainant would have available to him or her the same remedies for enforcing a court order as other persons in whose favour a Federal Court order is made enjoy.

ITEM 56

S. 46PN - Representation

The Federal Court should recognise the need for some disabled applicants to be accompanied by a support person while advocating in their own right.

The Bill provides for a litigant's right to be represented before the Court by a non-legal advocate - unless the Court considers that such representation is inappropriate in the circumstances. This provision will adequately address the needs of any litigants who require the formal assistance of an advocate when appearing without a lawyer. However, to allow for more informal support to be given, the Court may develop procedures that will promote fair and informal litigation. Although these are ultimately a matter for the Court, it could, for example, allow a support person to sit with an unrepresented applicant in order to explain what is happening in the proceedings or give to assistance where a person was physically disabled.

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ITEM 56

S. 46PO - The Court is not bound by technicalities or legal forms

Formality

Addressing the actual and perceived formality of the Court will be the subject of continued discussions between the Court, the Human Rights and Equal Opportunity Commission and the Attorney-General's Department, (see Federal Court submission and evidence of Commissioner Sidoti @ 268: Senate Legal and Constitutional Legislation Committee hearings on Tuesday ll March 1997 and 7 April 1997).

Rules of Evidence

The provision which specifies that the Court is not bound by technicalities and legal forms gives the Court the maximum discretion determine matters in an informal manner and to develop procedures for human rights matters that are not overly technical in nature. This power does not mean that the rules of evidence will not apply, nor does it mean that the Federal Court will not be acting judicially. There is nothing inherently different about discrimination proceedings that could justify such a change.

The rules of evidence apply in proceedings for enforcement of a HREOC determination under the existing law.

The Evidence Act 1995, which applies in federal courts, has greatly simplified and clarified the law of evidence and expanded the range of admissible evidence, especially in civil proceedings. Further, the Act has enhanced the power of courts to handle proceedings in a simple and expeditious manner. In particular, s. 190 gives the court broad power to dispense with (most of the) rules in the Act if, in a particular case, their application would cause unnecessary expense or delay. Federal Court rules Order 33 rule 3 has a similar operation in relation to the small area of evidence law not covered by the Evidence Act.

The Evidence Act is beneficial to persons appearing in proceedings without a lawyer. Section 120 confers a privilege in respect of confidential communications involving such a person, and confidential documents prepared by or for such a person, for the dominant purpose of preparing for, or conducting, a legal proceeding. The privilege corresponds to legal privilege relating to litigation. In this way, s. 120 goes some way to redressing the imbalance between parties represented by a lawyer and those not so represented.

The privilege created by s. 120 does not apply in proceedings where the Evidence Act does not apply. Legal privilege does apply in these proceedings because it is not merely a rule of evidence

Given the above matters, the recommendation made by HREOC at para 6 of its supplementary submission should not be adopted.

ITEM 56

S. 46PP - The President may provide a written report

The requirement to provide a report should be mandatory and the report should refer to any ongoing discrimination that has occurred during the conciliation and investigation process.

The provision allowing the President to prepare a report on a terminated complaint serves a number of purposes. It is envisaged that the report would generally be made at the request of either party and would serve to highlight the substance of more complex complaints.

The President may choose to prepare a report if, for example, s/he had terminated the complaint under s46 PE(i), that is, because the complaint involves an issue of such public importance that it should be dealt with by the Court.

As the report can be given to a member of the Commission it will also serve to inform the respective Commissioners of proceedings in which it may be appropriate for them to seek to appear as an 'amicus curiae'.

Given the purpose of the report, it is not considered necessary for the President to be required to furnish a report in each and every case. Nor is it considered appropriate that such a report include information concerning unsubstantiated allegations of discrimination which may or may not have occurred during or after the conciliation and investigation process (see proposed 46PP(2)).

ITEM 56

S. 46PR - Application to the Attorney-General for assistance

Separate grants of legal aid at the Attorney-General's discretion is too uncertain and will not provide a coordinated and cost effective mechanism for the provision of legal aid.

Separate grants of legal aid are the typical grants of aid under statutory provisions such as Clause 46PR. In addition, any grant of aid provided by a legal aid commission is also a separate grant of aid, elements of which are discretionary. Complainants will be able to have access to means test free advice services as well as separate grants of aid, subject to a means and merit test, to consider any offers made at conciliation.

Human Rights matters should be properly funded and Legal Aid Commissions should be funded to implement a Human Rights section similar to the W.A. HR Service model.

Funding for a Human Rights Section in legal aid commissions similar to the Western Australia Human Rights Service Model must be considered as part of the overall funding priorities for Commonwealth legal aid, which was the subject of a Budget decision in 1996-97. The final funding priorities for Commonwealth legal aid for 1997-98 are yet to be determined. Any further funding must be considered in the Budget context.

The Attorney-General's Department receives $5.878 million for 20 statutory schemes and 6 non-statutory schemes. How is this funding expended?

Details of the expenditure of this item are being prepared.

ITEM 56

S. 46PS - Amicus Curiae

Commissioner's should have amicus role as of right

The generally accepted principle for all Court proceedings is that parties are entitled to carry on their case free from the interference of persons who are strangers to the litigation. The proposal to provide an amicus role as of right is inconsistent with this principle. There is however an overriding right in the court to permit a person to appear as amicus curiae. This power is exercised in the interests of justice to assist the Court. It permits a stranger to the litigation to appear in order to inform the court of matters of law of which it might otherwise be unaware (this can be especially significant where one or more of the parties is not legally represented) or where it is in the public interest for the views of a particular person or organisation to be heard.

Amicus role limited by section 11(1)(o) of HREOC Act

The existing human rights and anti-discrimination legislation provides an intervention role for the Human Rights and Discrimination Commissioners, (see ss. 20(1)(e) RDA, s. 48(1)(gb) SDA, s. 67(1)(1) DDA and s. 1l(l)(o) HREOCA).

Proposed clause 46PS deals with the role of amicus curiae. This is a separate and distinct function which has no impact upon the intervention power.

Assuming the Privacy Commissioner would continue to be associated with HREOC would it not be possible for he or she also to be included as a possible amicus?

The Bill does not amend the Privacy Act 1988 nor does it affect the role and functions of the Privacy Commissioner. The Privacy Commissioner retains a role in conciliation; it is for this reason that no provision is made for the Privacy Commissioner to seek leave to appear as amicus curiae. Although the Privacy Commissioner remains a member of HREOC, the complaints mechanism under the Privacy Act will remain separate from the rest of HREOC for the time being.

Commissioners should be given the power to initiate proceedings in the Federal Court where they think it appropriate

Refer response Item 56 proposed 46PC.

The government's policy is that only the person affected by the discrimination is eligible to make an application to the Federal Court. The provisions which previously deemed Commissioners to be complainants are to be repealed.

ITEM 56

S. 46PT - Referral of discriminatory awards

Why limit the referral power to complaints of discrimination under the Sex Discrimination Act ?

The Government decided to retain the existing referral powers under the Sex Discrimination Act but not extend those powers to relevant complaints of disability and race discrimination.

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OTHER ISSUES

There should be a separate Human Rights Division of the Federal Court

After careful consideration and following consultations with the Court, it has been decided that the establishment of a Human Rights Registry in the Federal Court, in conjunction with the creation of judicial registrars, is the better option.

It would be difficult to justify the creation of a separate Division of the Court for human rights matters when there are other significant and much larger workload areas in the Court -for example, major commercial work where there are no separate arrangements. Additionally, separate Divisions impact adversely on management flexibility.

Creation of a Human Rights Registry is a compromise which acknowledges the mainstream nature of human rights matters, yet enables the Court to develop user friendly procedures and separate listing arrangements to facilitate handling of human rights cases.

The expected caseload means that, at this stage, registry facilities for human rights matters will be co-located with existing registry facilities. However, the Court advises that its registry staff will be receiving appropriate training to deal with human rights cases. Consultations with the Court are underway about the introduction of special procedures and registry facilities for human rights cases.

Commissioners should have a role of developing enforceable standards

All Acts include, as a function of the Commission, the power to prepare and publish guidelines for the avoidance of unlawful discriminatory activity. This function is generally undertaken by the Commissioners on behalf of the Commission.

In addition, the Disability Discrimination Act incorporates a standards making power, providing that the Minister may formulate disability standards in a range of areas including: education, transport and employment. The Disability Discrimination Commissioner and her staff are currently involved in the development of such standards but as yet, none have been completed forwarded to the Minister.

Given the existence of these functions it is not considered necessary to supplement the existing powers of the Commissioners unless and until experience indicates it is either appropriate or necessary.

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ATTORNEY-GENERAL'S DEPARTMENT

Office of General Counsel

2 May 1997

Mr Simon Taylor

Legal and Constitutional Legislation

and References Committee Secretariat

Australian Senate

Parliament House Canberra ACT 2600

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Dear Mr Taylor

Reference of Human Rights Legislation Amendment Bill 1996 to the Committee

Thank you for the notes which you faxed to me on 29 April 1997 relating to the issue of the proposed delegation to judicial registrars of powers to deal with human rights cases. The notes have been prepared in connection with the Legal and Constitutional Legislation and References Committee's report relating to the Human Rights Legislation Amendment Bill 1996.

2. This Department's views expressed to the Committee orally and in writing are based on the expectation that the High Court in any future challenge will uphold the principles in Harris v Caladine (l991) 172 CLR 84. However, the High Court may depart from or narrow a previous decision and the composition of Court has changed since the decision in Harris v Caladine and will change again with the departure of Dawson J in August 1997 and Brennan CJ in 1998. Hence 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. An illustration of the High Court adopting a more purist approach to the separation of judicial power principle within a short period of time is provided by the High Court's decisions in Grollo v Palmer (1995) 184 CLR 348 and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220.

3. It is therefore not possible to predict with certainty the outcome of any future challenge. Absolute certainty about the conferral of any federal jurisdiction would only be achieved if the jurisdiction was conferred directly on judges, and any delegation left to them (although even in this case an actual delegation could be held invalid if it contravened the principles governing delegations stipulated by the High Court). There also seems to me little risk that the High Court would depart from the basic principle that some delegation is permissible, particularly in view of the fact that the Court has held that there is an inherent power to delegate. It is the conditions governing delegations which are more at risk of further qualification. Nonetheless, this Department's expectation that the High Court will follow Harris v Caladine is based on principle and practical considerations, as outlined to the Committee previously.

4. The work of the Family Court relies on the use of court officers to exercise some of the court's jurisdiction and clearly the High Court would be reluctant to reach a decision which could invalidate a large number of orders made by registrars. Secondly, the decision in Harris v Caladine in relation to a federal court corresponded to the High Court's earlier decision, Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 in relation to the use of officers of State courts to exercise some part of those courts' federal jurisdiction. It seems to me highly unlikely that the Court would depart from the HCF decision, and require State courts to be organised differently for the exercise of federal jurisdiction than for the exercise of State jurisdiction .

5. A majority in Harris v Caladine were of the view that no real distinction could be made between the exercise of federal jurisdiction by State and federal courts. Thus Mason CJ and Deane J stated that:

The recent decision of this Court in the H.C.F. Case ... is quite inconsistent with the notion that the exercise of jurisdiction by judges to the exclusion of masters and registrars is an essential characteristic of a Ch. III court (92)

And further:

Now that it has been established by the H.C.F. Case that some part of the federal jurisdiction of a State court may be exercised by a master or registrar in conformity with State legislation, it becomes difficult, if not impossible, to assert that s.71 vests the exercise of judicial power in the judges of the courts specified in the section. It makes little sense either as a matter of logic or policy to require that the power be exercised solely by federal judges to the exclusion of officers of a court when, in the case of invested federal jurisdiction, the power may be exercised by officers of State courts. More importantly, as a matter of construction, it is not permissible to read s.71 as speaking differently in its application to federal and State courts. (Mason CJ and Deane J 93; to the same effect, Gaudron J at 145)

6. The majority of the High Court strongly confirmed the correctness of this approach in Kable v DPP (NSW) (1996) 138 ALR 577, where the Court emphasised that Australia had an integrated judicial system of State and federal courts 'with no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the parliament' (Gaudron J at 610; to the same effect, McHugh J at 621 and Gummow J at 639-40).

7. Furthermore, in Harris v Caladine some of the judges interpreted s 79 of the Constitution as empowering Parliament to prevent the delegation of judicial power (in effect by enacting a law stipulating that particular jurisdiction can be exercised only by a judge), thus assuming that a power to delegate exists.

8. On the assumption that in future the High Court will continue to follow Harris v Caladine in permitting federal judicial power to be delegated, that decision provides little guidance on how, if the Court in some future challenge wished to narrow the constitutional conditions governing delegation, it would set about doing so.

9. In paragraph 22 of your notes you say that the ratio of Harris v Caladine is that registrars may be delegated the power to make consent orders. I think this is too narrow a view of the decision. The Court upheld the validity of s 37A of the Family Law Act 1975, which authorised the Court to delegate to the registrars 'all or any' of the powers of the Court, except the powers listed in s 37A(2). The powers listed in s 37A(2) were the powers to issue divorce decrees in defended proceedings, decrees of nullity, and declarations of validity, dissolution or annulment of marriage, and to decide contested custody and access, etc disputes. However, s 37A(2) did not prevent the judges from delegating power to deal with contested property disputes, which is, of course, a large and very important part of the Family Court's jurisdiction. While the High Court did not need to address the issue of the delegation to registrars of power to decide contested property cases, one would have expected a warning to be given about this, if the High Court had considered that registrars could only be delegated power to deal with consent orders.

10. While s 37A itself was held to be valid, the High Court acknowledged that the judges of the Family Court could still fall foul of the Harris v Caladine principles if they in fact delegated too much power to registrars, in other words, that rules made for the purpose of s.37A might be invalid, although s.37A was valid. 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.

11. In this Department's view, the proposed provision conferring power to delegate human rights jurisdiction to registrars does not go further than s 37A, in a constitutional sense. Only some part of the jurisdiction of the Federal Court may be delegated. The power to issue interim injunctions in human rights cases may not be delegated. In delegating any part of the human rights jurisdiction, the judges must observe the Harris v Caladine principles. If they depart from them, the rules authorising such delegation are likely to be invalid.

12. With respect, I am unable to agree with Mr Peter Bailey's comments (as described in your notes) that the Bill 'does seem to come very close to telling the Court how it should manage an important part of its business' and the following advice which he gave to 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 Islander Affairs (1996) 70 ALJR 743].

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13. It is quite clear, constitutionally, that neither the Parliament nor the executive can tell a court that it must delegate powers to court officers. The High Court in Harris v Caladine considered that this was the case, and I cannot see the High Court changing its mind on this aspect. It is true that in theory funding could be appropriated for a federal court on the basis that some part of its jurisdiction would be exercised by officers. If this turned out not to be the case, because the judges of the court had not delegated the jurisdiction, then funding might be insufficient, from the court's point of view. However, federal court budgets are ultimately determined by the Government following negotiations with the court concerned. Presumably budget decisions do have an effect on how courts conduct their business and, presumably also, courts often wish that funding was greater. However, I am unable to see any new or stronger threat to the independence of the judiciary arising out of conferral of a power to delegate, which judges may or may not exercise.

14. In relation to paragraph 28, I point out that the Bill leaves it to the Court to decide what jurisdiction it will delegate. I do not think it is quite correct to say that this Department has suggested that contested matters in which small amounts of money are claimed should be heard by judicial registrars. The paragraph of this Department's letter to which you were referring was merely making the point that generally judicial registrars (meaning court officers) hear less complex matters or those concerning only a small amount of money. We recognise, however, that the sum involved does not always indicate the importance and difficulty of the issues.

15. So far as paragraph 30 is concerned, the separation of judicial power principle is always an important consideration in any issue involving Commonwealth judicial power. However, I do not think the High Court's decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 suggests that court registrars cannot be delegated judicial power. Brandy concerned a completely novel scheme for dealing with human rights disputes and the High Court held that the Parliament had purported to confer judicial power on the Human Rights and Equal Opportunity Commission, an executive body. In contrast, the Bill is based on, and does not go beyond, the Harris v Caladine principles, and the powers which may be delegated may be delegated only to court officers, who are under the control of Judges.

16. The Declaration of Principles on Judicial Independence referred to in paragraph 32 of your notes was issued on 10 April 1997 by the Chief Justices of the States and Territories. The part of the Declaration which you quote deals with the appointment of acting judges, but the notes suggest that the comments about acting judges may also be applied to court officers. This was certainly not the intention of the authors of the Declaration. State courts exercise jurisdiction through officers, yet the Declaration does not even mention court officers, let alone suggest that the authors' concern about acting judges extended also to court officers. If the authors of the Declaration considered judicial independence was threatened by the use of court officers, they would have said so. Further, appointments of acting judges are permitted by State Constitutions, which do not contain a principle of the separation of judicial power and do not require judges to have entrenched tenure and remuneration. Such appointments may also, constitutionally, be made to Territory courts. The Commonwealth Government cannot appoint acting judges to federal courts. There is nothing in Harris v Caladine to suggest that the High Court might regard officers of a Federal court as occupying a similar position to acting judges of a State or Territory court. A principal differen