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Wednesday, 17 February 1999
Page: 2994


Ms MACKLIN (1:37 PM) —As earlier speakers have indicated, the arrangements that are currently in place to deal with discrimination matters are not effective. The determinations of the Human Rights and Equal Opportunity Commission are not legally enforceable and, as others have said, they operate on the goodwill of the parties concerned. So the Labor opposition certainly agrees that amendments are necessary.

Under the current legislation—not the legislation that is before us—a person being discriminated against will have to take their case before the Federal Court for a determination to be legally enforceable. This of course is to the disadvantage and frustration of everybody involved.

Labor does support the two main elements of the bill in the interests of those needing to access complaint procedures and determinations in cases of discrimination. However, as the shadow minister has indicated, we do not support the way in which this government has attacked the rights of those who are the most disadvantaged and who experience discrimination by limiting the role of commissioners, by severely cutting back funding to the commission and by cutting funding to legal aid.

This bill proposes to fundamentally change the role of the commissioners as specialists in their field, separating out the roles of policy development and inquiry functions from complaints handling. To my way of thinking, this will downgrade the ability of the commission to act effectively in all areas. Inquiry and policy work will be developed in isolation from the complaints role of the commission. Commissioners will not be able to apply their expertise to the complaints process, and likewise the knowledge gained from complaints handling will not be as readily gained by those responsible for policy and inquiry work.

The executive president appointed under the bill will have the responsibility of handling complaints without the specialist knowledge that commissioners currently have. For these reasons, Labor opposes these changes. Very importantly, when we are dealing with issues of discrimination on the basis of gender, the systemic discrimination questions can only be dealt with if all the roles of the commission are fully integrated and mutually informed.

A related issue is the significant cuts that the commission has experienced since this government came to power. As I understand it, it is a cut of about 48 per cent—48 per cent of the commission's budget has been cut since the Howard government came to power. As a result of these cuts, of course, the capacity of the Human Rights and Equal Opportunity Commission to provide people with access to a process of justice in cases of discrimination has been overwhelmingly reduced. As a result of the cuts to the commission by this government, the commission has been forced to sack approximately one in three of its staff, and this too has seriously curtailed its ability to be an effective body of inquiry.

The government originally estimated that transferring the hearing function from the commission to the Federal Court would cost $1.5 million a year from 1996-97, but I understand that recent Senate estimates hearings have been told that the real cost was around $600,000. I gather the government knows this, and yet it has persisted in further reducing the capacity of the commission by reducing its budget on the basis of the original estimates.

In addition to the cuts to the commission's funding, there have also been substantial cuts to legal aid since 1996-97. The government originally announced that there would be cuts totalling $120 million over three years from 1 July 1997, but the budget cuts expected over six years on the basis of forward estimates totals $232 million in cuts to legal aid funding. This will seriously limit access to legal aid and many of the people who would have been able to take their cases to the Federal Court will be prevented from doing so.

While this bill makes the process of getting a legally enforceable outcome in the case of discrimination less wieldy, in practice the actions of the government in cutting back the capacity and functions of the commission will limit people's access to a just and fair hearing. The fact that the commission has lost the capacity to fulfil an inquiry role is a disgrace. It is an outcome which will be detrimental to the fundamental rights of all Australians for a fair and equitable go.

In relation to legal aid, under the Commonwealth-state legal aid agreements that came into effect on 1 July 1997, the guidelines state, and I quote:

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.

Labor rejects this attempt to limit individuals' rights to access the courts when they believe they have been subject to discrimination. There is no point in passing a law to enable people to pursue their cases in the Federal Court and then limiting, or not providing at all, any access to the funds that would enable them to pursue their cases of discrimination. It will be the case, I would suggest, that limiting access to legal aid in this way will result in fewer cases becoming before the Federal Court. People will just have to wear the discrimination and what that will do is give a clear signal to those who do discriminate that they are more than likely to get away with it.

These actions will particularly affect women. We do know that women are more likely than men to be discriminated against, whether it is in their place of work or elsewhere in the community. The Human Rights and Equal Opportunity Commission have provided an extremely important role in the field of equal opportunity for women. They have done this both in individual cases and, I would say just as importantly, in pursuing this issue of systemic discrimination against women. It is now accepted in Australia that discrimination against women is not accept able. I think the Human Rights and Equal Opportunity Commission should take a good deal of the credit for pursuing that issue of across the board discrimination.

The commission has set standards and community expectations about how women can expect to be given equal opportunity in our society. Of course, we all know that it does not always happen, and there will always be the need for people to take individual cases before the commission and to pursue particular examples of discrimination on the basis of gender. Nevertheless, we must never see a reduction in the activity of the commission as far as across-the-board discrimination is concerned.

Another issue that the shadow minister referred to earlier today is what will happen when people take these cases before the Federal Court. As we know, the purpose of this legislation is to enable the Federal Court to determine discrimination cases. People seeking redress before the court will have to meet the costs. Due to a government measure in the 1996-97 budget, there have been significant increases in the fees for people accessing the Federal Court. This will further limit people's ability to get a fair hearing and a legally binding decision.

The Sackville report on access to justice revealed that one of the greatest problems with our justice system is the ability of ordinary Australians—who do not qualify for fee exemptions but who, nevertheless, do not have the means to pay court fees—to access justice. A typical discrimination case lasting two days would cost more than $3,200 in court fees alone. Accordingly, the Labor opposition will be moving an amendment to the bill to apply no more than a nominal filing fee for discrimination cases.

When this bill was introduced into the House in 1996, it was referred to the Senate Standing Committee on Legal and Constitutional Affairs. The committee considered that several amendments were necessary and, as the shadow minister outlined earlier, a number of amendments will be moved. As he also said, they are moved in the spirit of improving the legislation, not in an antagonistic way. We do support the central elements of the bill: the creation of a specialised human rights registry within the Federal Court of Australia and the provisions that will give the commissioner power to mediate disputes. For all these reasons, amendments are clearly needed. When cases of discrimination go to the Federal Court, we need to make sure that people can actually afford the justice that we are here debating today—that the filing of fees is not prohibitive and that legal aid is available.

If we are serious about equal opportunity being pursued, the role of the commissioners in the Human Rights and Equal Opportunity Commission needs to cover both individual and systemic complaints. It is a commitment to both that has enabled discrimination and human rights issues to be dealt with effectively by the commission. I commend them for the enormous contribution they have made and suggest that we pursue the amendments that the Labor opposition will be doing in the best interests of those who are discriminated against.