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Wednesday, 26 November 1986
Page: 2758


Senator GARETH EVANS (Minister for Resources and Energy)(11.51) —by leave-I move:

That the Human Rights and Equal Opportunity Commission Bill 1985, as amended, and the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Bill 1985 be reconsidered and that so much of standing orders 202 and 265 be suspended as would prevent amendments being moved to the Human Rights and Equal Opportunity Commission Bill 1985.

God forbid, after the time we have taken to debate these Bills in their first incarnation, that we should be seeking any more time to do so. But there are a number of amendments which the Government has publicly indicated it thinks are appropriate and which we now want to take this opportunity to pursue.

I might just mention in parenthesis, since the subject of time has excited so much attention this morning, that another way of putting this whole issue in context is to remind the Committee that since 1950 there have been something like 3,600 Bills debated by this chamber-an average of, say, 100 a year over that period. It proves to be the case that the human rights package is only the fourth longest debate over that period, there are still 3,596 other debates which have moved faster than this one. It may also prove to be the case,when the clerk assistant at the table finishes the task that I am now reminded that I myself asked him to embark upon some months ago, that in fact it is only since around 1950 that we have had very long debates at all following the introduction of the proportional representation which made this chamber slightly more balanced, if not in terms of its sanity at least in terms of its numbers, than was the case previously.

I would be very surprised indeed-I think even Senator Durack would be surprised-if it turned out to be the case that before 1949-50 with the new representation arrangements there were debates of anything like the duration of those that occurred with the Communist Party Dissolution Bill, the Commonwealth Bank Bill and the present package that we are now talking about. I think when the statistics are finally done we will find that this debate has been, if not the longest, then the fourth longest debate in the approximately 8,600 debates that have occurred since Federation. I will not pursue that point any further.

I simply seek to move the Committee's attention constructively, as I am sure it will be minded to so move, to the terms of the motion before us. I would like to put that motion in context and explain in outline terms what they are all about. I think under the circumstances and given the shortage of time and given the fact that as promised to Senator Durack some days ago I have in fact given some speaking notes to the Opposition parties, the best way of explaining what this is all about, having regard to time constraints, is to seek leave to incorporate in Hansard a nine-page explanatory account of what the Government is doing in this area.

Leave granted.

The document read as follows-

The Government will propose amendments to the Human Rights and Equal Opportunity Commission Bill 1985 and the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Bill 1985.

I would like to set these amendments in their historical context. In 1981, the Fraser Government established the Human Rights Commission with complaint-handling, educational, promotional and research functions in relation to the Racial Discrimination Act, the International Covenant on Civil and Political Rights, and the United Nations Declarations dealing with the Rights of Children, the Mentally Retarded and the Disabled.

The Commission was established as a basically part-time body, with one full-time member and six to ten part-time members, including the Chairman. The Commissioner for Community Relations, who performs certain functions on behalf of the Commission under the Racial Discrimination Act, is not a member of the Commission.

After its election, the Hawke Labor Government decided that the Commission should be restructured. There were four main reasons for this decision.

First, the Commission acquired significant additional responsibilities under the Sex Discrimination Act in 1984. The fact that the Sex Discrimination Commissioner is not a member of the Commission highlighted the anomaly which already existed under the Racial Discrimination Act and which led to the two full-time Commissioners who performed the bulk of the Commission's complaint-handling work not having a direct input into the allocation of resources and the setting of priorities within the Commission.

Secondly, there was perceived to be a need to integrate the work of the Commission with the National and State Committees on Discrimination in Employment and Occupation. The work of these tripartite committees, which have existed since 1973, overlaps in a number of ways with the responsibilities of the Commission. There are obvious efficiencies to be gained through streamlining and co-ordinating equal opportunity remedies whenever possible.

Thirdly, the additional responsibilities which had been conferred on, or which were contemplated for, the new Commission tended to highlight the inadequacy of a structure based fundamentally on part-time membership. It is simply not possible for part-time members, heavily committed as they often are in other fields of public life, to maintain an adequate control over the day to day operations of a Commission which is responsible for handling about 2,000 complaints per year, as well as conducting a host of educational and research projects.

Lastly, the development of co-operative arrangements with four of the States meant that the Commission had an effective agent in those States in the form of the relevant State Equal Opportunity body. This has enabled the Commission to concentrate more effort in those areas of Australia which do not have adequate equal opportunity legislation.

These factors led the Government to form the view that the Human Rights Commission should be replaced with a small, cohesive body of full-time Commissioners. This would be the structure best adapted to handle complaints under the instruments in respect of which the Commission has responsibility, thus ensuring that Australia discharges its international human rights obligations. Bringing the Commissioner for Community Relations and the Sex Discrimination Commissioner on to the new Commission would also give them appropriate additional authority in relation to the allocation of resources within the Commission and liaison with the State bodies who act on behalf of the Commission. The establishment of the new Commission would also provide an opportunity to integrate the work of the Employment Discrimination Committees with that of the new Commission.

With these matters in mind, two Bills to establish a Human Rights and Equal Opportunity Commission were introduced in October 1984 in this House. Due to the election in December 1984, those Bills lapsed, but similar Bills were introduced into the House of Representatives in 1985.

Accompanying those Bills in 1985 was the Australian Bill of Rights Bill. As mentioned previously, the Human Rights Commission already has responsibility to deal with complaints under the International Covenant on Civil and Political Rights. The basic intention behind the Bill of Rights was that citizens should not only have an administrative remedy in relation to Governmental acts and practices that infringe their rights under the Covenant, but also that there should be a remedy available in respect of laws that violate the principles of the Covenant. In this respect, the Australian Bill of Rights was intended not so much to cover new ground as to represent a further and better implementation of the International Covenant in Australia.

This simple intention behind the Bill was widely misunderstood, not least of all, I regret to say, in this House.

It was said by the opponents of the Bill that the International Covenant was a Communist document, though the fact is that almost every Western nation is a party to it, and that it was the Fraser Government which arranged for Australia to become a party to it.

It was said that the Bill of Rights would have all sorts of adverse effects on the judiciary, on the family and on our way of life. It was frequently and patiently pointed out that such ill-effects have not occurred in any of the other Western countries which have become parties to the International Covenant and that they were hardly likely to occur in Australia.

Nevertheless, as with the Murphy Bill in the mid-1970s, logic failed to prevail. Some 36 hours of debate on the Bill of Rights and associated legislation in this Chamber resulted in glacial progress on the Bill in the committee stage. In the light of the backlog of legislation awaiting the Senate's consideration, the Government reluctantly decided to withdraw the Bill.

The Human Rights and Equal Opportunity Commission Amendment Bill, which was to have made an amendment which would have been consequential to the enactment of the Australian Bill of Rights, is also to be withdrawn.

At about the same time as these decisions were taken, the Government also asked the Attorney-General to look again at ways in which resources could be put to the most efficient use in the human rights area. The Attorney-General appointed a Task Force to look into this matter and report to him. In the event, the Task Force identified considerable savings which could be made by proceeding with the original proposal to streamline the work of the Human Rights Commission and the Employment Discrimination Committees. These options having been identified, the Government re- affirmed its intention to create the new Commission.

As Honourable Senators will see, the proposed amendments to the Human Rights and Equal Opportunity Commission Bills do not subtract from the functions of the Commission or the list of instrument in respect of which those functions are to be exercised.

Some of the amendments which will be proposed are designed to save money whenever possible while at the same time avoiding cutting across the thrust of the proposal to establish the new Commission. I might briefly identify those amendments.

First, the size of the Commission is to be further reduced to three full-time Commissioners and a part-time President. Because of the difficulties of administration which were referred to earlier and the obvious extra expense in having a number of part-time Commissioners, the Government will move an amendment to reverse the late Senator Alan Missen's amendment inserting six part-time Commissioners. At the same time, the Government has sought to take account of Senator Missen's concerns that there be a specific focus on the Commission for each of the groups which the Commission is designed to serve. Accordingly, the Government has decided that, in addition to the Sex Discrimination Commissioner and the Race Discrimination Commissioner (who is to replace the Commissioner for Community Relations), there should be a Human Rights Commissioner with specific responsibility in relation to the International Covenant, the three Declarations mentioned earlier, and International Labour Organisation Convention No. 111, which deals with discrimination in employment and occupation.

Taken together with the advisory committees which are provided for in clause 17 of the Bill, the Government considers that the proposed new structure obviates the need for the part-time Commissioners which were proposed by Senator Missen.

Another cost-saving measure relates to the determination function of the Commission. The amended Bills will ensure that the determination function of the Commission will be able to be performed by a single member where appropriate. Presently, the Sex Discrimination Act requires the Human Rights Commission to be constituted by at least three members for the purpose of making a determination under that Act. Practice has shown that many cases are of a nature that do not require three Commissioners to be present. Under the new proposals, the President will be able to appoint a single member to preside over such cases. At the same time, the President will be able to appoint two or more members to a panel in cases that raise major issues or are particularly complex.

There are also a number of other amendments which the Government proposes which, although they do not relate directly to costs, should enable the Commission to operate more effectively and efficiently.

The most substantial of these changes involves replacing the present complaint-handling procedures in the Racial Discrimination Act with provisions modelled on the complaint-handling procedures in the Sex Discrimination Act. The provisions in the latter Act were, of course, debated at length in the Senate in 1983 during the consideration of the then Sex Discrimination Bill. Accordingly, there does not seem to be a need to go into them in any great detail but, for the benefit of Senators, I will briefly outline the proposed new provisions.

New sections 21 to 23 provide for the receipt of complaints and their transmission to the Commissioner. New sections 24 to 24e provide for the Commissioner to inquire into complaints. Where necessary, the Commissioner may seek an interim determination to preserve the status quo between the parties during the inquiry process. This may be necessary where, for example, a complainant in an employment discrimination case is threatened with dismissal. The Commissioner has the power to obtain relevant information and documents and to convene a conference of the parties.

If the Commissioner is unable to resolve the matter by conciliation, there is provision for the matter to be referred to the Commission. Sections 24f to 25z deal with the powers of the Commission to inquire into matters and, if necessary, make determinations in relation to them. A determination, which cannot for constitutional reasons be binding and conclusive upon the parties, may include the finding that the respondent should compensate the complainant in various ways. If necessary, the Commission or the complainant may institute a proceeding in the Federal Court to enforce a determination (section 25za).

The replacement of the procedural provisions in the Racial Discrimination Act is necessary because the present provisions have not proved effective. Presently, the Act provides for the Commissioner for Community Relations to inquire into complaints and to attempt to settle them. If complaints cannot be settled, a certificate may be issued which entitles the complainant to institute proceedings in a court. In practice, the institution of legal proceedings in a court, without any prior statement as to their rights under the Racial Discrimination Act, has proved to be beyond the financial and emotional resources of most complainants. In fact, the 11 years of the Act's operation have seen the issue of only 33 certificates, and the commencement of only one court action. The Commissioner for Community Relations, Mr Jeremy Long, appointed by the Coalition Government in 1981, has recently observed that no complainant under the Racial Discrimination Act has ever succeeded in obtaining a remedy before the courts.

Another compelling reason for the changes to the procedural provisions which are proposed is the administrative efficiencies which can be gained through the procedures being identical in the two major Acts for which the Commission has responsibility.

Another amendment which the Government proposes relates to sub-clause 17 (1) of the Human Rights and Equal Opportunity Commission Bill, which deals with the appointment of advisory committees. The proposed amendment, which has been suggested by the Australian Democrats and accepted by the Government, makes it clear that the Minister must appoint at least one advisory committee.

Finally, the maximum term of appointment for Commissioners is to be increased from the present five years to seven years. The longer maximum period of appointment provides a greater opportunity to secure the services of experienced and able Commissioners. Such additional flexibility in the appointment of Commissioners does not, of course, deprive the Government of the opportunity to appoint Commissioners for shorter terms.

I want briefly to mention the constructive approach of the Australian Democrats to these amendments. Like the Government, they wish to see the work of the Human Rights Commission, and particularly its work in relation to race and sex discrimination, continue after 9 December (upon which date that Commission ceases to exist due to a ``sunset clause'' in the Human Rights Commission Act). They have accepted the need for urgency in relation to the amendments while at the same time they have contributed some useful suggestions for improvement.

The overall purpose of these amendments is to establish a new body which will carry out Australia's international human rights obligations as efficiently and as effectively as possible. The Government is confident that the establishment of the Commission will revitalise support for human rights in Australia and hopes that the Commission, as an independent statutory authority charged with safeguarding the basic rights and freedoms of the citizen, will receive the bipartisan support that it deserves.

In concluding, I want to emphasise the fact that the new Commission is an independent statutory authority and, as such, will need to determine its own priorities, within its limited resources, given the background of the domestic legislation and international instruments for which it is responsible. It will need to work out co-operative arrangements with the State Equal Opportunity Commissions on the basis of resources available and priorities set. Neither this Government nor any future Government has any right to direct the Commission in the implementation of its responsibilities and this Government certainly will not seek to do so. The Government, as well as any other organisation or individual, has a right to make a complaint to the Commission. The Government also has a right to request the Commission to make certain reports-but that is all. In the Government's view the independence of the Commission in determining its priorities and executing its functions is quite fundamental.

The new Commission has an important role to play in this country and I commend these amendments to Senators.