Mr McCLELLAND (11:37 AM) —by leave—I move:

(19) Schedule 1, item 58, page 29 (after line 34), after section 46PO, insert:

46POA Application to Court by special-purpose Commissioner

(1) If a special-purpose Commissioner becomes aware of a breach or attempted breach of:

(a) this Act; or

(b) the Sex Discrimination Act 1984 ; or

(c) the Disability Discrimination Act 1992 ; or

(d) the Racial Discrimination Act 1975 ;

in respect of which a person has not made, and is unlikely to make, a complaint, the special-purpose Commissioner may make an application to the Federal Court, alleging unlawful discrimination by a person or persons.

(2) The Court may appoint a conciliator to inquire into the allegation and attempt to conciliate the matter in accordance with the relevant Act.

(3) The Court may not appoint a particular special-purpose Commissioner as a conciliator in a matter if that special-purpose Commissioner lodged the application in respect of that matter.

(4) If the matter is not resolved by conciliation, the special-purpose Commissioner who made the application, or the conciliator appointed by the Court, may apply to the Court for a hearing of the matter.

(5) If the Court is satisfied that there has been unlawful discrimination by any respondent, the Court may make such orders (including a declaration of right) as it thinks fit, including any of the orders mentioned in subsection 46PO(4) or any order to a similar effect.

(6) In this section, special-purpose Commissioner has the same meaning as in section 46PV.

(20) Schedule 1, item 58, page 30 (line 29), omit "or legal forms", substitute, "legal forms or the rules of evidence".

(23) Schedule 1, item 58, page 34 (lines 10 to 13), omit the definition of discriminatory act under an award , substitute:

discriminatory act under an award means an act that would be unlawful under Part II of:

(a) the Sex Discrimination Act 1984 ; or

(b) the Disability Discrimination Act 1992 ; or

(c) the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with an award.

(24) Schedule 1, item 58, page 35 (lines 20 to 23), omit the definition of discriminatory act under a determination , substitute:

discriminatory act under a determination means an act that would be unlawful under Part II of:

(a) the Sex Discrimination Act 1984 ; or

(b) the Disability Discrimination Act 1992 ; or

(c) the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with a determination.

(25) Schedule 1, item 58, page 37 (lines 1 to 4), omit the definition of discriminatory act under a determination , substitute:

discriminatory act under a determination means an act that would be unlawful under Part II of:

(a) the Sex Discrimination Act 1984 ; or

(b) the Disability Discrimination Act 1992 ; or

(c) the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with a determination.

Opposition amendment No. 19 deals with the ability of the commissioners to themselves commence proceedings in the Federal Court. Again, this is an issue which I touched on earlier. The nature of discrimination is that it is often the most profoundly disadvantaged in our community who are the victims of discrimination and simply do not have the knowledge, let alone the resources, to commence this sort of litigation.

Bear in mind that it is frequently the outcome of court cases or findings by courts in particular that progress the boundaries of discrimination. They themselves perform an educative role in the community when the community outcome of court cases is the event which is most frequently published in the media to communicate to the general society what is, and what is not, an appropriate standard to judge the application of the discrimination legislation by. So it is important that allegations of substance are brought before the courts and, in that context, we say that it is appropriate that the commission itself, through individual commissioners, be empowered to commence proceedings in the Federal Court of Australia.

As I mentioned in my reply to the minister's second reading speech, that power exists, for instance, with the Australian Competition and Consumer Commission under section 80 of the Trade Practices Act. We have seen that more recently with the litigation that the ACCC commenced against the Maritime Union of Australia, and it has done so in a number of areas to establish boundaries regarding the application of legislation. We say that it is most appropriate that the Human Rights and Equal Opportunity Commission be given that power.

Opposition amendment No. 20 relates to simplifying proceedings. We say that, in this area in particular, it is inappropriate for the court to be bound by the strict rules of evidence. There are a number of precedents in the Federal Court. One that I can recall is, for instance, when the Federal Court conducts an election inquiry into an industrial organisation. Whether it be a trade union or an employer organisation, the court is not bound by the rules of evidence. It literally acts as an inquiry. Those proceedings can be conducted much more freely and less technically as a result of the removal of that restriction. Associate Professor Tahminjis was of the view that clause 46PR of the bill would not prevent the operation of those rules of evidence, and we think that should be clarified by an appropriate amendment to the bill.

Opposition amendments Nos 23, 24 and 25 all relate to the ability to refer matters of discrimination appearing in industrial awards and orders—whether they be in the private sector, the public sector or the defence forces—to the appropriate tribunal. Currently, only sex discrimination matters can be referred to those bodies. We say that it should be broadened to include not only sex discrimination but also allegations of race or disability discrimination. It should be specifically provided that matters involving those particular issues of discrimination could be referred to the appropriate tribunal—whether it is the Australian Industrial Relations Commission, whether it is the Remuneration Tribunal or whether it is the Defence Force Tribunal—to remove the offending provisions from the particular industrial award or employment prescription.