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Wednesday, 17 February 1999
Page: 2996


Ms ROXON (1:48 PM) —I also rise to speak in support of the Human Rights Legislation Amendment Bill 1998 . As has been made clear by previous Labor speakers on this bill, it is an important bill and it is something that is necessary as a result of the Brandy decision in the High Court. However, in supporting the bill—again, as other speakers have already made clear—the Labor Party has certain reservations about it, and significant amendments will be moved to make this bill actually fairer and more constructive for the community.

The area of discrimination is very important, particularly to my electorate. We have a large number of migrant groups that have a very keen interest in the race discrimination laws and a growing interest in the combined impact of the sex and race discrimination laws, particularly for the Islamic communities and the women in those communities who are facing discrimination regularly in employment and, in some circumstances, in education.

It is very close to my heart and to the electorate's heart that these changes will make it easier for a person bringing a complaint to have their decision, if the Federal Court is to find in their favour, made enforceable. The situation that has been in place for the last couple of years has clearly not been a constructive situation for anyone who was seeking to have a decision enforced.

Of course, that system also favoured those with money. It meant that, if a respondent chose to ignore a decision of the commission, they could happily refrain from paying any compensation which might have been awarded by a sex or race discrimination commissioner and insist that the matter be heard de novo in the Federal Court. That, of course, is a system that nobody could support. Whilst the opposition is supporting this bill, we have raised some concerns that we do not want to be in the position where this bill continues some of those difficulties for people who may not have sufficient funds to be able to pursue their claims.

The shadow minister has already raised the issue that matters will be able to be heard under this bill, if it becomes law, by judicial registrars. However, there is a note of caution about whether that will also include an automatic right of review, which again may favour those with sufficient money to require a second hearing and require complainants to fund the costs of a further trial. Certainly the proposals could lead, and hopefully will lead, to a system which is quicker and cheaper and which will be prompt and less technical for those who are involved.

There are a number of concerns that must be looked into in the handover to the Federal Court of this jurisdiction. There are concerns not only with registrars dealing with complaints but also that other Federal Court rules should not automatically apply to those discrimination complaints in the same way that they might apply for tax or trade practices matters, which certainly deal with completely different litigants in completely different financial circumstances.

Issues have also been raised in respect of the capacity to bring a class action or a representative action. It has been made clear already that the current system makes it possible for a person who has been discriminated against to join with simply one other person who has suffered similar discrimina tion to bring a class complaint. Under the Federal Court's current rules, it is necessary to have seven people who are prepared to bring such a complaint for a class action to be processed. It is a concern that this is actually more restrictive in a situation of discrimination where we are all aware that it is often difficult to find complainants who are prepared to speak out against the discrimination that they might be suffering, whilst there may be a class that could still benefit from action being taken.

Again, with representative actions, it is a slightly different situation where there may also be a large class of people who are being discriminated against and an interested party who is prepared to take action on their behalf. Most commonly we see the trade unions taking action in general on behalf of a group of their members, not necessarily named and specified in detail. Our concern is to ensure that representative action can be taken by trade unions or other interested advocacy groups, such as the disability advocacy centres that are doing some great work in Melbourne at the moment.

Further, we have some concerns that, if ordinary Federal Court fees apply, this could also be a disadvantage to persons seeking to bring a complaint. Currently, to file a complaint in the Human Rights and Equal Opportunity Commission there is no cost. There are, however, costs involved in filing any applications in the Federal Court. There are some exemptions provided, but they are provided only to the most needy in our community—which, of course, is supported. There are, however, large numbers of people who cannot afford legal representation or expensive court fees and who may not qualify for those exemptions.

We are also very supportive of the theory and, I must say, some of the rhetoric that has come from the government in the introduction of this bill. The bill does place much greater emphasis on the educational role that the Human Rights and Equal Opportunity Commission could play and its capacity to promote understanding and acceptance of the act, to conduct and foster research in areas that might have some impact on discrimination, to make inquiries that can deal with systemic discrimination, and to campaign and advocate on behalf of those who may have been discriminated against, including intervening in court hearings in the public interest.

This development of being able to intervene in court hearings was referred to by our shadow minister—the process of amicus curiae. This is picking up an American idea whereby interested parties or advocacy groups would be able to be represented before the court to provide information which may not be available to an individual complainant but which has an impact on whether or not they have been discriminated against. It covers a large number of other systemic issues that should be taken into account.

This focus on human rights and discrimination issues and the role of the commission in bringing the public's attention to issues that exist are extremely important, as I think everyone in this House would acknowledge. The difficulties of a narrow, complaints based system are ones that we have all been able to see if we have been involved in helping any of our constituents in cases of discrimination or, in our previous lives, advising clients on their discrimination claims. In fact, we know that a complaints based system has been notoriously incapable of properly dealing with many discrimination issues, not just because it involves individuals but because of the difficulty in quantifying damages for such discrimination.

The point I am trying to make is that I can strongly support the idea, and the Labor Party strongly supports the idea, of the commission being given a stronger role to pursue and promote public issues and public awareness and concerns with discrimination. On policy grounds, it is a good and positive policy. It is close to my heart, as I have said—issues that I raised in my first speech being an area that I practised in for some time and an area of great concern to the electorate.

However, it is impossible for us to reconcile this theory with the government's actions in dramatically cutting funding to HREOC's budget. We must remember that the commission is already currently massively underresourced and understaffed. That is part of the reason why the commission, although it currently has a role to play in education and public policy, cannot focus on that role.

Whilst removing the hearing component of the commission's role to the Federal Court, as indeed was required following the Brandy decision, will have some impact on HREOC's capacity to deal with other issues, it will not actually reduce the workload in assessing and conciliating complaints. Even with existing staff, it would leave only very limited time to pick up the roles that to date have been difficult for the commission to fulfil. Given this, slashing existing funding will simply ensure that the commission continues to be in the position that it cannot adequately fulfil these roles. Its public education role and its capacity to deal with systemic discrimination will not be improved merely by the introduction of this bill.

It is impossible to speak in support of this bill without drawing attention to the government's hypocrisy in making significant budgetary decisions that effectively curtail the commission from doing the very things that the government says it wants to achieve through this legislation.

It is policy by stealth: put one position on the record but make a budgetary decision which ensures that it cannot be successful. It is the same sneaky type of position the government took on the resignation of the former Sex Discrimination Commissioner, Sue Walpole, and its failure to appoint a new Sex Discrimination Commissioner for over a year—13 months in fact—until the pressure got too much and finally a replacement was appointed. It is a constant undermining by this government of discrimination issues and human rights but without the preparedness to acknowledge it.

So whilst this bill is needed overall and is supported by the opposition overall, it cannot ensure that the commission fulfils a constructive role if it is not funded sufficiently to do so.

There are other budget decisions that have an impact on the effectiveness of this bill—those concerning legal aid. The laws cannot be effective and moving the hearing role to the Federal Court from the commission will not be effective if, when discrimination occurs, a person cannot afford to bring a complaint. Limiting access to legal aid, charging fees in the Federal Court and prohibiting the recovery of costs or damages have that effect.

The legal aid requirements which will be applied to discrimination cases sought to be brought before the Federal Court require prospects not just of success but of substantial benefits being awarded to a complainant. There are not many discrimination cases, as many people should know, that can fit within this because, although a subject of discrimination may suffer great damage and hardship and certainly much personal offence, they often will not be able to be paid significant amounts of compensation. The quantities are notoriously low, although we have had a few recent exceptions to this. However, for the purposes of legal aid, it would be highly unusual for a case to be able to meet that requirement.


Mr SPEAKER —Order! It being 2 p.m., the debate is interrupted in accordance with standing order 101A. The member will have leave to continue speaking when the debate is resumed.