Ms JULIE BISHOP (6:53 PM) —In light of the opposition's carping in relation to the Human Rights Legislation Amendment Bill 1998 and its stance, an appreciation of this bill quite apparently requires, I believe, some background history on the reasons for and the effect of it. In general, the bill seeks to amend the Commonwealth anti-discrimination legislation to reform the administration, functions and structure of the Human Rights and Equal Opportunity Commission. In essence, the bill addresses the impact of the High Court decision of Brandy v. The Human Rights and Equal Opportunity Commission and Ors, which was in fact delivered in February 1995.

At the time, there was a great deal of media and community reaction to the decision, which was perhaps indicative of the practical effect that this decision has had on the commission, and of the necessity that this government has grappled with in ensuring that a restructure of the commission has a positive impact on the determination of anti-discrimination cases. In Brandy, the High Court declared invalid amendments to the Racial Discrimination Act 1975, the sex discrimination and other discrimination legislation, and the Law and Justice Legislation Amendment Act 1994. Amendments brought about by the later acts related to the process by the Human Rights and Equal Opportunity Commission of determining allegations of racial and other discrimination, and to the enforcement of the findings of the commission.

Under the amendments, a determination by the commission was to be registered at the Federal Court registry and, after the expiration of a fixed period during which a review of a determination might or might not be taken up before the Federal Court, the determination took effect as if it were an order of the Federal Court. In Brandy, it was this enforcement mechanism of a commission determination that the High Court found invalid, as being contrary to the principle of the separation of judicial power.

It is interesting that, in reviewing the nature of judicial power, the High Court began with the well-known definition given in the 1909 case of Huddart Parker v. Moorehead. The court commented that the exercise of power by a tribunal to enforce its own orders has sometimes been seen as an essential element in the exercise of judicial power. They noted that in another case, Rola Co (Australia Pty Ltd) v. The Commonwealth (1944), it was the absence of power to enforce decisions which had led the High Court to conclude that there was no exercise of judicial power.

Following this reasoning, the court concluded that the commission's power to hold an inquiry to make a determination was not in itself an exercise of judicial power. The judges stated that the fact that determinations of the commission cannot be enforced by the commission was a strong factor weighing against the characterisation of its powers as judicial. The primary issue before the court was not whether the power to enforce a decision is properly characterised as judicial power but whether the amendments conferred that power on the commission or on the Federal Court. The enforcement provisions under consideration in the Brandy case did not directly convey a power to enforce determinations on the commission.

The question before the court was not so much whether it was valid for a non-judicial body to enforce its own decision but rather what procedures constitute enforcement. The Brandy decision demonstrates that the High Court was not prepared to depart in any respect from the separation of powers doctrine, and the decision consolidates the High Court's interpretation of chapter III of the Constitution. The effect of Brandy is that chapter III of the Commonwealth Constitution prevents the Commonwealth parliament from providing that a decision of a Commonwealth tribunal can be made judicially enforceable by the simple device of registering the decision with the Federal Court and giving it legal force—provided the respondent has not sought review of the decision within a specified time.

There is no doubt that the court justified its ruling by focusing on the fortuitous words in the Racial Discrimination Act, `as if it were an order of the Federal Court'. I think that it read `as if it was', but I will say `as if it were'. In holding this mechanism invalid, the High Court expressed its awareness of the ineffectiveness of the earlier process of enforcing a commission determination through independent proceedings in the Federal Court and of the policy considerations for the change to the new procedure.

The High Court ruled that the review mechanisms through which a Federal Court was able to scrutinise a commission determination did not permit an unfettered exercise of judicial power by that court. In summary, the High Court found that the legislation gave commission determinations the effect of court orders. Accordingly, the legislative provisions were held to be invalid because they effectively meant that the commission was exercising a judicial function, in contravention of the Constitution.

Even the fact that respondents had a right of review to the Federal Court against the commission's determinations was deemed insufficient to save the pre-1995 enforcement scheme. The High Court noted that the review right did not necessarily lead to a fresh hearing of the matter and was exercisable only by the respondent. Post Brandy, it has been necessary to fundamentally change the commission, most significantly in that the commission will no longer conduct hearings or inquiries in relation to matters that cannot be conciliated.

The bill confers on the president of the commission the roles and functions of a chief executive officer and centralises complaint investigation and conciliation procedures in the office of president. The bill also simplifies the legislation by implementing a single complaint handling scheme, with common definitions and best practice procedural provisions in the one act.

In effect, the bill simplifies dispute resolution procedures in human rights matters by eliminating this second tier of review in the commission—that is, the commission inquiry, which was not directly enforceable—and provides that matters that cannot be conciliated or are not suitable for conciliation will be dealt with in the Federal Court. Under the current system, parties to human rights complaints may have to go through two hearings before obtaining a binding decision.

The merits of conferring the human rights jurisdiction on the Federal Court may not at first blush be obvious to all. But it is the only federal court—other than the High Court—with an appropriately wide-ranging jurisdiction. As breaches of the discrimination legislation can involve a broad range of diverse issues, the Federal Court's experience in dealing with a vast range of matters in various jurisdictions is seen to be invaluable in the human rights context.

Locating the jurisdiction in the Federal Court will serve to highlight the importance of human rights issues. It will mainstream human rights issues. Further, the Federal Court has real experience in human rights cases, as proceedings for a review or enforcement of determinations are heard there. It will continue to be the forum for proceedings under the AD(JR) Act arising under human rights legislation. The bill enables the judges of the Federal Court to delegate some but not all of their functions in the human rights area to judicial registrars, who will be able to assist with the additional caseloads. Judicial registrars are now part and parcel of the Federal Court regime including the Family Court, the Industrial Relations Court and of course the Federal Court.

The High Court, by a majority, in the case of Harris v. Caladine gave its endorsement to the provisions—in that case, to the provisions of the Family Law Act—that allowed for the delegation of judicial powers to registrars. In that case, a consent order made by a registrar was challenged. The registrar made the order pursuant to rules of court, made pursuant to a power vested in the court to delegate to a registrar certain powers of a judicial nature. The powers so delegated were, under the rules, subject to the right of the court to review the exercise of powers by way of a hearing de novo.

I point out that registrars are not appointed pursuant to chapter III of the Constitution. The High Court held in Harris v. Caladine that the delegation was valid, noting that it is a commonplace characteristic of modern courts that officers such as masters and registrars exercise jurisdiction, powers and functions in a wide variety of matters. The decision in Harris v. Caladine was a clear signal that, provided the judges of a Federal Court retain supervision and control over the exercise of judicial power, such power could be delegated to court officers without the need to afford those officers the status, title, remuneration or tenure of Federal Court judges. The attractions of such flexibility and potential for economy are obvious.

The bill before the House also makes provision for the commissioners of the Human Rights and Equal Opportunity Commission—other than the Privacy Commissioner, who by virtue of other legislation recently passing through this House is set up as a separate statutory authority—to appear as amicus curiae to argue the policy imperatives of their legislation before the Federal Court, subject to the court granting leave. Until recently in Australia, perhaps as distinct from the position in other jurisdictions including the United States, the intervention of an amicus curiae was relatively rare, being confined to assisting the court in its tasks of resolving the issues between the parties by, for example, drawing the court's attention to some aspect of a case which might otherwise be overlooked.

Given the experience of the commissioners, it would seem appropriate that, with the leave of the court, interventions by the commissioners as amicus curiae will be welcomed and will be of great assistance in appropriate matters. The commissioners will also fulfil a highly significant role within the commission—newly defined as human rights advocates and educators, not a role to be lightly dismissed. After Brandy's case, the Human Rights and Equal Opportunity Commission listed four principles in human rights which they considered crucial in any consideration in future proceedings—equity in dealing with cases and in access to the commission's processes, accessibility including keeping processes low cost, the availability of specialist knowledge and enforceability.

This bill still recognises that the best forum for resolving discrimination complaints, at least in terms of satisfying the first three of these principles, will be within the commission, and the complaint investigation and conciliation procedures will continue to be of significance and effect. It is only where cases cannot be conciliated that the Federal Court proceedings are relevant. The legislation specifically seeks to emphasise procedures which promote access and equity in terms of cost, evidence and procedure. In particular, the application of the normal rules of evidence to human rights proceedings will be to simplify them. For example, proposed section 46PR provides that the court is not bound by technicalities and legal forms. It is anticipated that the Federal Court will develop its own framework of more informal procedures, as necessary.

One issue that is worth considering is the question of costs in the Federal Court fee structure. Should a matter not be settled by conciliation, and end up in the Federal Court, it has been suggested that the normal costs rules should not apply in the new human rights jurisdiction. In the normal course, costs are generally awarded for the party who wins the court proceedings—costs follow the event. This raises access and equity issues, but I strongly support the position that human rights matters determined in the Federal Court be subject to a costs jurisdiction rather than a no costs jurisdiction.

The discretion that exists within the Federal Court jurisdiction now to determine whether costs are appropriate or not appropriate in certain circumstances continues to apply. The fact is that, in its practical application, costs do not automatically follow the event in the Federal Court. It has a discretion which it exercises in appropriate cases including whether or not it is in the public interest.

The fundamental argument against a costs jurisdiction is the risk of an adverse costs order. Conversely, of course, if a costs order were made against a respondent in favour of a complainant it would be welcomed. But there is no doubt that, if a complainant brought a discrimination complaint in the Federal Court and lost, there is a risk that, as in other cases, there would be hardship occasioned to the plaintiff or the complainant, if they have to pay costs. In practice, the fact is that the vast majority of matters already settle at the conciliation stage. In the Federal Court, with the costs jurisdiction, there will be an even greater percentage settling, in all likelihood. The advantages of a costs jurisdiction far outweigh the disadvantages. If a costs jurisdiction exists—I must say that the Federal Court scale is realistic in terms of its party-party costs schedule—this will only encourage and increase the opportunities for complainants to be legally represented and to have a lawyer from the earlier stages of the complaint.

It is far more difficult for complainants or plaintiffs to find a lawyer in a no-cost jurisdiction compared with a cost jurisdiction, because many lawyers are able to do a case on the basis that they rely on the outcome, so they do not charge any fees and rely on the costs order if and when the case is successfully concluded. If it is not successful, they do not charge their fees. I would suggest it is a fact of life that without a cost jurisdiction being available many complainants could not get a lawyer and would have to depend on publicly funded lawyers or appear unrepresented. Of course, a complainant will not necessarily need representation in the more informal environment anticipated by the legislation—a less technical, less formal, more user friendly one. But in circumstances where legal representation is required, I suggest that a cost jurisdiction will lead to that result.

There are numerous examples of costs jurisdictions where plaintiffs or complainants are represented by lawyers who are able and prepared to do the cases largely on spec. Personal injury cases are a prime example, and I would anticipate that discrimination and human rights cases could achieve the same high level of representation with a similar cost jurisdiction. Finally, on that point, it is planned that the proposed federal magistracy will have jurisdiction over human rights complaints which have not been satisfactorily conciliated in the commission. One of the great attractions of the proposed federal magistracy is that it will also keep costs down for the litigants, the complainants, in this jurisdiction.

The government has responded responsibly to the necessity for change within the commission, particularly with the introduction of uniform procedures for handling complaints. I commend this bill to the House.