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Wednesday, 12 September 1984
Page: 902


Senator GARETH EVANS (Attorney-General)(4.08) —I move:

That the Bills be now read a second time.

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION BILL 1984

I am pleased to be able to move the introduction of the Human Rights and Equal Opportunity Commission Bill, which the Government regards as a significant legislative reform and an important part of its human rights program. The Bill will establish a new Human Rights and Equal Opportunity Commission to replace the existing Human Rights Commission. The new Commission will be the basic machinery through which the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 are administered, and through which the proposed Australian Bill of Rights and any future legislation in the human rights area will be administered. It will also be the vehicle under which Australia's obligations under the Discrimination (Employment and Occupation) Convention of 1958-that is the International Labour Organisation Convention 111-will be imple- mented.

The Government is concerned to ensure that the new Commission will have an effective and cohesive leadership. In order to achieve this, the membership of the Commission will be relatively small and it is expected that appointments will be made on a full time basis, although the Bill provides a measure of flexibility by making part time appointments possible where such appointments are seen as necessary or desirable in a particular case. The Commission will comprise a President, the Race Discrimination Commissioner-formerly the Commissioner for Community Relations-appointed under the Racial Discrimination Act, the Sex Discrimination Commissioner appointed under the Sex Discrimination Act, and at least one but not more than three other Commissioners, one of whom could have responsibilities in research, education and promotion areas. The question of staff and administrative structure of the new Commission will be considered in order to ensure maximum efficiency and the most effective use of scarce resources.

The name of the new Commission, together with the inclusion of the specialist Commissioners among its members, will properly emphasise the significant role of the Commission in the areas of equal opportunity and anti-discrimination and the new name-the Human Rights and Equal Opportunity Commission-will enhance the possibility of ultimately achieving complete 'one-stop shopping' arrangements with those States presently having human rights and equal opportunity agencies with similar names.

The functions of the Commission in the human rights area will be similar to the functions presently carried out by the Human Rights Commission. The human rights concerned are those recognised in the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons. These international instruments are attached to the Bill which contains provisions enabling the Minister, after consultations with the States, to declare other relevant international instruments for the purposes of the legislation.

The Commission will have investigation, conciliation and reporting functions in relation to complaints of infringement of human rights; it will examine international instruments, Commonwealth enactments and, if requested by the Minister, proposed Commonwealth enactments, to ensure they contain nothing inconsistent with or contrary to any human rights; it will report to the Minister in relation to any laws that should be made, or action that should be taken, by the Commonwealth to comply with Australia's international obligations under the international instruments attached to the legislation and any declared relevant international instruments; and it will undertake research, education and promotion activities and will perform functions conferred by any other Commonwealth or State legislation or under Commonwealth/State arrangements. In addition, the Commission will formulate and publish guidelines in relation to matters, including the avoidance of discriminatory acts or practices, that fall within its functions and it will be able, with the consent of the court, to act as amicus curiae in cases where human rights or anti-discrimination issues are raised in legal proceedings under Commonwealth or State law.

I have mentioned the intended role of the Commission in implenting Australia's obligations under ILO Convention III. That Convention, which Australia ratified in 1973, is included among the international instruments attached to the Bill. It requires, among other obligations, that each member state undertake 'to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof'. Australia's national policy under the Convention was announced by the then Minister for Labour on 22 May 1973. The policy includes the development of educational and conciliation processes and the establishment of national and State employment discrimination committees on a tri-partite basis. It seeks to achieve the co-operation of State and Commonwealth governments, employer and worker organisations and other appropriate bodies.

The National Employment Discrimination Committee comprises representatives of the Commonwealth government, the Australian Council of Trade Unions, and the Confederation of Australian Industry, women, migrants and Aborigines and has an independent chairperson. Its functions include advising the Government on the implementation of the Convention, considering complaints of discrimination in employment and occupation having national significance and complaints referred to it by the State committees, promoting equality of opportunity in employment and co-ordinating a national education program. The various State committees, which include representatives of Commonwealth and State governments, employers and unions, together with an independent chairperson, consider complaints of discrimination in employment and occupation and implement a nationally developed education program.

The national policy has undergone de facto changes since it was announced. It encouraged the development of administrative processes rather than the enactment of legislation enacting enforceable rights. Special anti-discrimination legislation having an impact in the employment area has since been enacted by the Commonwealth Government and by some of the State governments. It has for some time been clear that the policy needs to be reconsidered and, in particular , the integration of the State committees within the framework of a new human rights commission in order to facilitate what I have described as 'one-stop shopping' by complainants has been publicly forecast.

To this end, the Bill will give the new Commission important functions in the field of employment and occupation. It will have investigation, conciliation and reporting functions in relation to acts and practices in the Commonwealth sphere that are discriminatory on the grounds specified in the Convention-race, colour, sex, religion, political opinion, national extraction and social origin-and on such of the grounds developed over the years by the State committees as may be declared by the Minister-age, criminal record, marital status, medical record, nationality, personal attributes, physical disability, sexual preference and trade union activities. The Commission will also be given investigation, conciliation and reporting functions in relation to discriminatory acts and practices engaged in within the States and the Northern Territory. It will not, however, have any coercive powers for obtaining information or evidence in this area. Unless it acquires additional powers in relation to acts or practices engaged in within the States pursuant to Commonwealth/State arrangements, the Commission's functions in the State area will be limited to functions of the kind exercised by the State committees.

In considering these new functions, the Government has borne in mind the need to preserve the existing State specialist legislation and to ensure that complaints of discrimination that are covered by that legislation or by other Commonwealth legislation continue to be dealt with under that legislation. Under the Bill, a complaint that is covered by the Racial Discrimination Act or the Sex Discrimination Act will be dealt with under that Act rather than under the proposed new provisions. Similarly, a complaint of a discriminatory act or practice occurring within a State and covered by anti-discrimination legislation in that State will be referred to the State authorities to be dealt with under that legislation.

The Bill provides for the appointment of advisory committees. It is proposed to appoint a new National Advisory Committee including representatives of State governments, the ACTU and CAI and certain client groups, such as women, migrants and Aborigines. This Committee will advise the Commission in the performance of its functions and will have, in addition, the special function of advising the Minister on the development of a new national policy to meet the requirements of ILO Convention 111.

It is also proposed to establish an advisory committee of heads of State equal opportunity and anti-discrimination agencies to advise on matters including the co-ordination of procedures under Commonwealth/State co-operative enforcement arrangements. In addition, regional advisory committees may be established to keep the Commission in touch with community opinion and to utilise the expertise and goodwill which exists in relevant organisations and individuals in the community. The present part-time members of the existing Human Rights Commission and former members of State employment discrimination committees could be included as members of the regional committees, together with representatives of relevant interest groups, including the disabled and civil liberties organisations, women, Aborigines and migrants.

The functions of the Commission in the employment and occupation area will enable the functions of the State employment committees to be gradually subsumed within the new Commission. At the same time, the establishment of the advisory committee system should ensure that the valuable expertise developed by the State committees during the past 10 years will not be wasted but will be put to an important and constructive use.

The proposals to which the Bill gives effect, and in particular the implementation of ILO Convention 111 through the new Commission, have been the subject of consultations with State governments, the ACTU and the CAI. The Bill will establish a strengthened Commission with significantly widened functions. Its role in ensuring the effective compliance by Australia with its international obligations under ILO Convention 111 will increase Australia's international standing in the human rights area.

Honourable senators will be aware of the emphasis which the Government has placed on the need to preserve and promote State initiatives in the human rights and equal opportunity field and to co-operate with the States in an effort to make the best possible use of the limited expertise and government resources available in this area. There is little sense or efficiency in the Commonwealth and State governments acting independently in this field without proper regard for the need for uniformity.

This Government has made significant progress in co-ordinating the efforts of all governments concerned about equality of opportunity. Co-operative arrangements for the rational use of existing resources have been in operation for more than a year with Victoria and have just commenced with New South Wales and South Australia. I hope that similar arrangements will follow with Western Australia as soon as possible after the enactment of the legislation which I understand is planned for that State.

Furthermore, I am, in conjunction with the State Ministers with responsibility in the human rights area, taking a new look at the whole field of Federal and State human rights and equal opportunity protection and the possible development of more wide-ranging co-operative arrangements with the States than had previously been considered, covering determination of complaints as well as their investigation and attempted conciliation. In this context. I hope that it will eventually be possible to remove determination functions from the Commission and to establish a joint Commonwealth/State tribunal to deal with the determination of complaints under anti-discrimination legislation in both the Commonwealth and State spheres. I hope that it will also be possible at the same time to remove the present system of overlapping legislative jurisdictions, thereby preventing the confusion, delay and double tracking for complainants that can result from that system and furthering the development of a system of ' one-stop shopping'. The Bill represents a necessary step toward achieving an effective human rights and equal opportunity system in Australia. I commend the Bill to the Senate.

The Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Bill 1984 is also the subject of introduction into this place today. I seek leave to incorporate the second reading speech in relation to it into Hansard.

Leave granted.

The speech read as follows-

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1984

As its title suggests, this Bill deals largely with technical matters. It contains transitional provisions necessitated by the abolition of the Human Rights Commission and the establishment, by the Human Rights and Equal Opportunity Commission legislation, of the new Human Rights and Equal Opportunity Commission. It also contains consequential and other amendments of the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

Part II of the Bill repeals the Human Rights Commission Act 1981. It contains transitional and savings provisions designed to ensure that complaints made to, and examinations and inquiries commenced by, the Human Rights Commission but not dealt with before the Human Rights and Equal Opportunity Commission legislation comes into operation can be dealt with by the new Commission. Commonwealth/State co-operative arrangements entered into under the repealed legislation will be preserved as will agreements entered into by the former Commission. Officers of the former Commission will continue to be bound by the confidentiality requirements in the former Act, and monies appropriated for the former Commission will be available to the new Commission.

Part III of the Bill contains amendments of the Racial Discrimination Act. The office of Commissioner for Community Relations is to be replaced by a new office of Race Discrimination Commissioner. This change will bring a measure of uniformity into the Commonwealth's anti-discrimination legislation. Further changes to the Racial Discrimination Act are at present under consideration by the Task Force on Human Rights in my Department. The Bill contains savings provisions necessitated by the change of office of Commissioner and by the establishment of the new Commission. In the enforcement area, certificates signed by a member of the former Commission or by the former Commissioner may be used as the basis for instituting civil proceedings after the new legislation comes into operation. The Race Discrimination Commissioner will be a member of the new Commission and will not be subject to the directions of the Commission in the performance of functions under the Racial Discrimination Act. Certain penalties under the Act have been up-dated and its language rendered gender neutral.

Part IV of the Bill amends the Sex Discrimination Act. Here again, savings provisions are necessary as a result of the establishment of the new Commission. The Sex Discrimination Commissioner will be a member of the new Commission and will not be subject to the directions of the Commission in the performance of functions under the Sex Discrimination Act.

The Bill contains new interim provisions in relation to the determination functions. As I mentioned in my Second Reading Speech relating to the Human Rights and Equal Opportunity Bill 1984, negotiations are being conducted with the States with a view to establishing a joint Commonwealth/State Tribunal to exercise determination functions. Under the interim provisions the Minister will be empowered to appoint persons on a part-time basis to assist the new Commission in the performance of its determination functions under the Sex Discrimination Act. Persons so appointed will be deemed to be members of the Commission when they are called upon to take part in determination proceedings.

It is hoped that the persons appointed for this purpose could include members of those State bodies which are already performing similar functions under existing State human rights and equal opportunity legislation. In this way, the Commonwealth will be able to utilise the expertise and experience which already exists in certain States.

I commend the Bill to the Senate.

Debate (on motion by Senator Reid) adjourned.