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Wednesday, 17 February 1999
Page: 2986


Mr McCLELLAND (12:50 PM) —This Human Rights Legislation Amendment Bill 1998 is part of a series of government legislation with respect to the human rights area. While part of this bill is necessary to overcome the ruling of the High Court of Australia in Brandy's case, the government's strategy in this whole area is regrettable.

The government have become experts at mastering rhetoric while completely veiling the lack of substance to their policies. In this vital human rights area, we see the veiled rhetoric at election time, with government ministers out there rubbing shoulders with various ethnic leaders. We see all sorts of things. They will throw extra money towards setting up ethnic based schools but, when it comes to the issues of institutionalised problems that affect Australians of non-mainstream background—to use the Prime Minister's mainstream phrase—there is a complete lack of substance.

When you pull aside that veil of rhetoric, there is a massive demolition exercise going on. There are jackhammers and pile-drivers in there assaulting the structure of human rights that has been built up over the last decade. These rights are fundamental to the standard of living of all Australians and, indeed, fundamental to the wellbeing of the international community—that each and every nation respects all citizens' fundamental rights.

The Attorney-General earlier in the day seemed to acknowledge that there had been a 48 per cent reduction in the resourcing of the Human Rights and Equal Opportunity Commission. Whether he accepts that figure or not, I think he would accept that there has been a massive reduction in the resourcing of the commission. He said that one of the rationales of the government in so reducing the resources of the commission was the extent of expenditure over the last decade which I think he said had been some 400 per cent. Isn't it lucky that that expenditure was made when we have just gone through a period of seeing the One Nation forces with so much ignorance and so much bigotry—indeed, evilly so—capitalising on that bigotry and ignorance in the community for base political motives? Isn't it lucky that those resources were put into the human rights area by the former Labor government?

The other rationale that the government relied on in cutting back expenditure is that, they say, last year's report of the Human Rights and Equal Opportunity Commission showed that there had been a 38 per cent reduction in complaints. But as the commission itself noted at page 35 of its report:

There is no developing trend in the overall number of complaints in central office and it appears that complaint numbers rise and fall from year to year with no obvious explanation.

So to rely on that one year's aberration in figures is completely unjustified. Indeed, I would say that there may well be reasons why people have not made complaints which themselves require investigation. For instance, it may be general insecurity in the employment market. When there has been a reduction in unfair dismissal protections and the like, it may actually have made people apprehensive of pursuing their rights in the antidiscrimination area. Far from justifying a reduction in costs, it may indeed suggest a need for further investigation.

In any event, the government has been entirely misleading in using that aberration in figures as justification. Why? Because the cuts were implemented before the annual report of HREOC was handed down. So it is complete and utter rubbish and entirely misleading and offensive to the Australian people for the government to now use that as justification for the massive cutbacks it has made to the Human Rights and Equal Opportunity Commission.

And cutbacks there have been. In 1996-97, the budget for HREOC was $20.5 million. It was reduced in 1997-98 to $17.9 million; in 1998-99, to $12.3 million; and for 1999-2002, to $10.7 million—down from the 1996-97 level of $20.5 million. Effectively, that is a halving of the annual allocation to the Human Rights and Equal Opportunity Commission. That is nothing short of an outrage to the people of Australia, particularly those who do not come from what the Prime Minister would regard as `mainstream', and an outrage in terms of the international standards that most civilised nations are meeting.

The assault on the ability to obtain redress for breach of Australians' human rights must be seen in the overall context of a general depletion of the rights of ordinary citizens—for instance, the cuts to legal aid that I mentioned, which I will be referring to shortly; the additional filing fees of the Federal Court; and reduced accountability through the administrative review procedures in the Administrative Appeals Tribunal. Overall, there has been about a $400 million reduction in access to justice for ordinary Australians.

I mentioned in a speech earlier today that, as a result of the government's massive assault on the Human Rights and Equal Opportunity Commission, the commission has reduced its work force by one-third—from 180 down to 60. Surely that has to affect its capacity. The following are not my words or the words of anyone who could be seen to have a vested interest in, or be part of, what this government has condescendingly described as the `Aboriginal industry' or the `ethnic industry'—to use its condescending phrases—but are the words of the former Commissioner for Human Rights, Sir Ronald Wilson. He had no hesitation in defending the Human Rights and Equal Opportunity Commission in a press release on 13 May 1997 when he said:

At a time of great need for re-stating the values of inclusion, non-discrimination and tolerance in Australia, these cuts mean the Commission will be unable to continue to work at its current level.

Indeed, he pointed out the work that had been done over the last decade by the Human Rights and Equal Opportunity Commission. It is worth while to reflect on just what the commission has achieved for Australians as individuals and for Australian society as a whole. For individuals, the commission has:

. successfully conciliated thousands of complaints;

. improved protection of disability rights including access standards—

which is a matter we will be addressing in this bill—

. extended education and advocacy on racial tolerance and anti-discrimination in Australia;

. protected the rights of the especially vulnerable including homeless children, the mentally ill, elderly people and Australians in remote areas;

These are people who do not go to your average Liberal Party or Labor Party meeting to lobby politicians; these are very vulnerable people. To continue:

. improved industrial and employment standards particularly for women.

I note the indications in the media that the government is talking about including in the preamble to the Constitution concepts of gender equity but is not prepared to put its principles in place here. The commission has also:

. established the Asia-Pacific Forum on Human Rights;

. developed legislative proposals to protect the aged from discrimination;

. acted on increasing public concerns about privacy protection;

. promoted the rights of Aboriginal and Torres Strait Islander people . . .

Sir Ronald Wilson, of course, received the applause of the entire Australian community with his chairmanship of the inquiry which produced the report, Bringing them home .

All these things have been achieved by the Human Rights and Equal Opportunity Commission, but the government tends to regard this whole human rights area as being an aspect of political correctness that the Prime Minister so condemned—until he saw the consequences of the Hanson and One Nation phenomenon taking off and nearly sinking the prospects of his government's re-election.

We are talking about an essential institution which perhaps does not receive the media attention that it deserves, and about principles that certainly do not receive the media attention that they deserve. It is absolute hypocrisy for the government to assert that the Human Rights and Equal Opportunity Commission has not been affected by the extent of its cuts. The present Human Rights Commissioner, Mr Sidoti, who is also the Disability Commissioner, has indicated in evidence to the Senate estimates committee that his work as a disability commissioner looking after the rights of the disabled has been significantly affected by government cuts. There you have a fellow at the coalface saying to the government, `My work in representing the interests of the disabled has been affected by your cuts.' For the government to stand up pretentiously and preciously and say, `We have not affected the human rights area' is a nonsense and, quite frankly, a lie.

One of the other extensions of that lie was the suggestion made today that, because there will be the transfer of the hearing and determination function to the Federal Court, the Human Rights and Equal Opportunity Commission will be saved money. But, when you look at it, even the explanatory memorandum to the bill says that only $0.6 million will be saved because of that transfer, yet the government has cut $1.5 million from the Human Rights and Equal Opportunity Commission budget in respect of this transfer. There is an absence of the necessary frankness and honesty about what is actually happening.

What is happening to the human rights area has to be seen in terms of an overall access issue. It is inevitably going to be the case that complainants before HREOC, in moving to the Federal Court, will have considerable legal costs. Indeed, on the basis of filing fees, which I will mention, there is potentially $3,200 worth of filing fees, together with transcript fees of about $700 per day, for applicants in the Federal Court to enforce their rights if conciliation fails. In that context, legal aid is vitally important.

The reality is that, because the government has cut about $120 million from the legal aid budget over a three-year period, there is very little aid—if any—available for the human rights area. Indeed, clause 5.1 of the joint Commonwealth-state guidelines published in July 1997 says that the commission `may grant assistance for equal opportunity discrimination cases where there are strong prospects of substantial benefit being gained not only by the applicant but also by the public or any section of the public'. So we are looking at a situation where there must be strong prospects of success and of substantial benefit not only to the individual applicant but also to the community.

If it is not perceived that the community is going to benefit, but the individual will be severely affected as a result of the discrimination, hard luck! They miss out. There is no other area of litigation where such a restrictive approach to the granting of legal aid has been implemented. That again speaks volumes about this government's approach to enabling ordinary Australians to enforce basic human rights.

In terms of the objects of the bill itself, the Labor Party acknowledges that measures are necessary, and that the bulk of the measures to overcome the decision of the High Court in Brandy's case are appropriate. The decision of the High Court was that the Human Rights and Equal Opportunity Commission could not exercise administrative power and judicial power at the same time. It is adopting the principles of the famous boilermakers case, which referred to the division of functions that we have in our Westminster system between the executive, the parliament and the judiciary—the executive being empowered to take administrative steps; the judiciary, to actually adjudicate in disputes.

We can see that there needs to be a structure to get the final adjudication of these matters to the Federal Court, which is actually empowered to make orders, but we are concerned about the facilitation of access for ordinary Australians to Federal Court procedure. We agree, I have to say, with the establishment of judicial registrars as part of a human rights registry in the Federal Court. We think that is sensible and that the hearing procedures through judicial registrars will be less formal and ultimately less complex than hearings before judges are.

The fact that they are judicial registrars, as opposed to judges, necessarily means that there have to be appeal rights to the judges of the Federal Court, and that is also acknowledged by the opposition. The fact that the Federal Court structure is in place to actually make orders and determinations is not inappropriate and, indeed, is supported by the opposition. There are a number of amendments that we will be moving, but they are not amendments moved in an obstructive or negative sense. They are genuinely moved to make the bill and the system much more constructive.

Firstly, we are saying that the specialist commissioners of HREOC should be able to continue to conciliate complaints. The government proposes to have the conciliation function undertaken by an executive president only, but with the specialist commissioners—that is, the commissioners who deal with sex discrimination, racial discrimination and disability discrimination—coming into the role of amicus curiae, or person assisting the Federal Court, when it gets to that particular stage.

We say that that is short-sighted. These specialist commissioners have obvious expertise in their areas, and their expertise will actually enhance the prospects of having a conciliated outcome; so we will be moving amendments to enable the executive president to be able to delegate his conciliation function to those specialist commissioners. We are also of the view that it is inappropriate for the executive president—or any other commissioner, for that matter—to give individual reports on matters that they have conciliated. We are of the view that any reporting to parliament should be by the commission as a whole, and that will be addressed when we move our amendments.

We are also strongly of the view that commissioners themselves should be empowered to bring complaints. The nature of litigation, particularly in the Federal Court area, is that it is incredibly expensive—and the government has made it more so. For instance, the cost of filing an initiating process in the Federal Court is $500; and of filing a notice of motion, $246. The fee for the hearing of a notice of motion is $400; for issuing a subpoena, $40; for setting down a proceeding for hearing, $1,000, with a daily fee after the first day of $400—together with, as I have said, $700 per day for transcript so that you can properly present your case. So the costs of proceeding in the Federal Court are prohibitive, and for that reason we say the commissioners should be empowered to bring complaints themselves. We note that the ACCC has the power to do so and we have seen it more recently, in more dramatic circumstances, with the waterfront dispute.

We also say that the Commonwealth being a good citizen, or a model citizen, should willingly accept the conciliation outcomes of the Human Rights and Equal Opportunity Commission, and that the Commonwealth should not compel a further stage of litigation to the Federal Court of Australia. We think it should set an example as part of a cooperative approach to resolving issues of discrimination.

We will be moving amendments to break down the formalities of the procedures between HREOC and the Federal Court. For instance, while it is possible for an applicant to amend their complaint before the Human Rights and Equal Opportunity Commission, it will not be possible to amend it before it gets to the Federal Court. We say that that is unreasonable, that there may be events which have occurred which require documentation to be amended and that it is overly technical to prevent that occurring. The court is well placed to consider the merits of permitting an amendment. It already does that in many other areas of its jurisdiction.

Obviously, there need to be strong provisions regarding confidentiality of compulsory conference and conciliation proceedings. Indeed, it could be prejudicial to both sides if there was not that confidentiality. For instance, an applicant, in their affidavit evidence to the Federal Court of Australia, could prejudice the fair hearing by the judicial registrar if they put in prejudicial material concerning recommendations which may have been made by the conciliation commissioner at an earlier stage before HREOC, and there should be specific provisions regarding confidentiality.

We also say that there should be a greater thrust in the act to encourage the parties to record their agreements. Indeed, the HREOC commissioners should be empowered to assist parties to reduce their agreement to writing so that it is recorded and everyone is sure of their position.

Currently, it is the situation that only matters relating to sexual discrimination can be referred to the Australian Industrial Relations Commission or the Remuneration Tribunal or the Defence Force Tribunal, and we say that that is too narrow. If there is an order or an award in place that affects one of those areas, we say there should be a possibility for sex, race or disability issues to be referred for review by those tribunals.

We will be supporting a number of amendments that arise from the majority report of the Senate Standing Committee on Legal and Constitutional Affairs. The committee as a whole gave a report in this area in respect of this bill for which it should be congratulated. The Labor senators took a different thrust but, on the whole, the committee took a detailed and constructive approach in its consideration of the bill. I say in passing that that is a process which the parliament and the Senate should encourage. Coming out of that report were a number of recommendations which should be implemented and we will be moving amendments to that end.

We say that a legal representative or next friend of a disabled person should be empowered to represent that disabled person at a conciliation conference or in other areas of litigation, and that there should be provisions to enable an individual complainant to obtain legal representation if the person that they are making the complaint against is legally qualified. We say that there should also be provision for the Federal Court to continue dealing with the complaint even though the parties may have requested its withdrawal.

That already occurs with election inquiries in industrial organisations. The rationale being that it is in the public interest that industrial elections are conducted fairly and reasonably. Even if both parties wish to discontinue there may nonetheless be matters brought to the court's attention where the public interest requires them to be further pursued. We say that should be provided for in the legislation and we will be moving appropriate amendments.

We will also be moving amendments to relax the application of the rules of evidence in the Federal Court. That happens in several areas and, in particular, again, in the election inquiry area, which gives a much freer rein for the court to consider broad ranging issues where there may not be strict technical evidence to formally prove issues. So we will be moving an amendment for that.

I have previously referred to the extent of the Federal Court filing fees. I will not go over that again but just say that there should be greater provisions for waiver. There are some provisions but they are far too limited in terms of the discretion that they give. At the least there could be an amendment to have, in this area, only nominal fees.

We are also concerned with the overall costs, as I have indicated, for applicants. If an applicant wishes to pursue their rights in the Federal Court it is literally the case that if costs follow the event—that is, if they lose and are ordered to pay both their costs and the respondent's costs—it could literally bankrupt them. The risks in that situation for individual litigants are so great in many cases that that could itself be a restriction on their access to justice. We say it is not appropriate for costs to follow the event and, again, we refer to the industrial relations model contained in the Workplace Relations Act where costs follow the event only in respect of proceedings which are held to have commenced vexatiously or unreasonably.

We have indicated to the Democrats that we will give consideration to their amendments. In so far as an applicant may elect to seek to recover costs, should they win their case, then in those circumstances it could be said that they may be consenting to expose themselves to the costs order but, at the same time, may be able to recover costs if they are successful.

We will be moving amendments to provide greater flexibility for class actions in the Federal Court. Currently, in excess of two applicants are required for a class action before the HREOC but, in the Federal Court, in excess of seven applicants are required for a class action. We will also be moving amendments to facilitate the replacement of complainants if one drops out, and also to facilitate complainants coming together even though they may be seeking different remedies, providing they are complaining about the same act of discrimination.

We will also be moving amendments to facilitate representative complaints, whether that be by a trade union or by other agent. Again, the costs of this litigation, which I have discussed, are so prohibitive that it may be that rights can only be pursued by properly resourced organisations such as a trade union which may represent, for instance, a worker in a situation of workplace discrimination.

These are amendments which I will speak to when we come to the consideration in detail stage of the bill. We have moved them in a constructive and thoughtful sense, having regard to the majority and minority reports of the Senate Standing Committee on Legal and Constitutional Affairs, to which I have referred. We hope that the government will take on board those amendments. We circulated recently two additional amendments. One includes, in particular, facilitating greater access to buildings for disabled people. I understand that those later two amendments are receiving sympathetic consideration.

We are working in this vitally important area of human rights—an area where I initially castigated the government for its harshness and lack of sincerity. At the same time, while pleading for this area to be properly resourced, we are trying to work with the government to get a sensible, workable framework which facilitates the necessary access for individual complainants to the Federal Court to enforce their orders, if needed.

The final point I would like to make is that in preparing for this speech I noted at least one media release in which the Attorney-General criticised my predecessor for delaying the introduction of this legislation. Nothing is further from the truth. The Labor Party does not oppose the thrust of the legislation to overcome Brandy's case. The only reason this legislation has taken so long is that the government, on each and every previous occasion on which the legislation has been due to come into the House and the Senate, has put it so far down in the queue that it has not been reached or concluded. So there is no justification at all for the government to say that any delay has been the result of the action of the opposition. Again, we are prepared to cooperate and will be moving amendments in that light. We would hope that the government would sincerely examine the propositions that we will be putting to them. (Time expired)