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Wednesday, 26 November 1986
Page: 2797


Senator GARETH EVANS (Minister for Resources and Energy)(4.56) —I table explanatory memoranda which take account of amendments to be moved on behalf of the Government 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 suggest that it might suit the convenience of the Committee to deal first with the Human Rights and Equal Opportunity Commission Bill 1985.


The CHAIRMAN —Is that the wish of the Committee? There being no objection, it is so ordered. There are 17 amendments to the Bill. If the Committee agrees, I intend to deal with them in this manner: First, the Government's 10 printed amendments, taken together if the Committee gives leave, followed by the Opposition's three amendments, again taken together by leave, and then the Government's separate roneoed amendment. I would be grateful if the Minister would ask his advisers when they circulate amendments to give them some number by which they can be identified. To describe them as a roneoed amendment is not really an adequate identification. I propose finally to deal with the Australian Democrats' three amendments, again taken together by leave if it is the wish of the Committee. If it is agreeable to the Committee, we shall proceed in that way.


Senator GARETH EVANS —by leave-I move:

(1) Page 2, clause 3, sub-clause (1), leave out the definition of ``appointed member'', insert the following definition:

`` `appointed member' means the President or the Human Rights Commissioner;''.

(2) Pages 7 and 8, clause 8, leave out the clause, insert the following clause:

Constitution of Commission

``8. (1) The Commission shall consist of-

(a) a President;

(b) a Human Rights Commissioner;

(c) the Race Discrimination Commissioner; and

(d) the Sex Discrimination Commissioner.

``(2) The President and the Human Rights Commissioner shall be appointed by the Governor-General.

``(3) The President shall be appointed as a part-time member.

``(4) The Human Rights Commissioner shall be a legally qualified person appointed as a full-time member.

``(5) The affairs of the Commission shall, in accordance with the decisions and subject to the directions of the Commission, be administered by the Human Rights Commissioner.

``(6) The functions of the Commission under paragraphs 11 (1) (f) and 31 (1) (b) and the functions of the Commission under paragraphs 11 (1) (p) and 31 (1) (k), to the extent that they relate to the performance of the first-mentioned functions, shall be performed by the Human Rights Commissioner, and a reference in this Act to the Commission or to a member of the Commission shall, in relation to the performance of any of those functions, be read as a reference to the Human Rights Commissioner.

``(7) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of a vacancy in the office of President, Human Rights Commissioner, Race Discrimination Commissioner or Sex Discrimination Commissioner.

``(8) In this section, `legally qualified person' means a person who-

(a) is or has been a Judge of a court created by the Parliament or of a court of a State or a person who has the same designation and status as a Judge of a court created by the Parliament; or

(b) is enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court, of another federal court or of the Supreme Court of a State or Territory.''.

(3) Page 13, clause 17, sub-clause (1), leave out the following:

``The Minister may, if the Minister considers it desirable, establish an advisory committee or advisory committees, and an advisory committee so established shall perform such of the following functions as the Minister directs:'',

insert the following:

``The Minister shall establish at least one advisory committee, and may, if the Minister considers it desirable, establish 2 or more advisory committees, to perform such of the following functions as the Minister directs:''.

(4) Pages 13 and 14, clause 19, leave out the clause, insert the following clause:

Delegation

``19. (1) The Commission may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member of the Commission, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under this Act, other than this power of delegation.

``(2) A member may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the member, delegate to-

(a) a member of the staff of the Commission; or

(b) any other person or body of persons,

approved by the Commission, all or any of the powers exercisable by the member under this Act, other than this power of delegation.

``(3) A power delegated by the Commission under sub-section (1) or by a member under sub-section (2), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission or by the member, as the case may be.

``(4) A delegation under this section by the Commission or by a member does not prevent the exercise of a power by the Commission or by the member, as the case may be.

``(5) Subject to any provision in the instrument of delegation, a person to whom a power of the Commission has been delegated under sub-section (1) may, for the purposes of the exercise of that power, exercise any power conferred on a member of the Commission by this Act.

``(6) In sub-section (1), `power' does not include a power conferred on the Commission by the Radical Discrimination Act 1975 or the Sex Discrimination Act 1984.

``(7) In this section, unless the contrary intention appears, `member' means a member of the Commission.''.

(5) Pages 27 and 28, clause 36, leave out the clause, insert the following clause:

Acting President and Human Rights Commissioner

``36. (1) If the Human Rights Commissioner is available, the Human Rights Commissioner shall act as President-

(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

(b) during any period when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of President.

``(2) The Minister may appoint a person to act as President-

(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of President,

but-

(c) a person so appointed shall not act as President during any period while the Human Rights Commissioner is available so to act; and

(d) a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

``(3) The Minister may appoint a person to act as Human Rights Commissioner-

(a) during a vacancy in the office of Human Rights Commissioner, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Human Rights Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Human Rights Commissioner,

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

``(4) An appointment of a person under sub-section (2) or (3) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

``(5) The Minister may-

(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as President or Human Rights Commissioner pursuant to an appointment under sub-section (2) or (3); and

(b) terminate such an appointment at any time.

``(6) Where a person is acting as President or Human Rights Commissioner in circumstances referred to in paragraph (2) (b) or (3) (b) and the office of President or Human Rights Commissioner, as the case may be, becomes vacant while that person is so acting, then, subject to sub-sections (1) and (4), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the day on which the vacancy occurred expires, whichever first happens.

``(7) The appointment of a person to act as President or Human Rights Commissioner under sub-section (2) or (3) ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

``(8) While a person is acting as President or Human Rights Commissioner, the person may exercise all the powers, and shall perform all the functions, of the President or Human Rights Commissioner, as the case may be.

``(9) At any time when a person who is not a member of the Commission is acting as President or Human Rights Commissioner, the person shall be deemed to be a member of the Commission for the purposes of sections 21, 22, 23, 24 and 26 (including those sections as applied by section 33) and sections 42, 48 and 49.

``(10) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that-

(a) the occasion for the person's appointment had not arisen;

(b) there is a defect or irregularity in connection with the person's appointment;

(c) the person's appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.''.

(6) Page 28, clause 37, sub-clause (1), leave out ``5 years'', insert ``7 years''.

(7) Page 29, clause 43, sub-clause (2), leave out ``President'', insert ``Human Rights Commissioner''.

(8) Clause 44, sub-clause (3), leave out ``Subject to sub-section (3a),''.

(9) Clause 44, leave out sub-clause (3a).

(10) Page 30, clause 44, leave out sub-clause (5), insert the following sub-clause:

``(5) If the President is not present at a meeting of the Commission-

(a) if the Human Rights Commissioner is present, the Human Rights Commissioner shall preside at the meeting; or

(b) in any other case, the members present shall elect one of their number to preside at that meeting.''.

I seek leave to have incorporated in Hansard an account of what each of these 10 amendments is about. I have shown the document in question to Senator Durack. I hope he has made it available to any other Opposition senator who is interested. I will certainly be happy to respond to any question about any particular amendment, but I think it may save time if I put on the record in slightly more accessible language than in the explanatory memorandum itself an account of why each of these amendments has been moved. I seek leave accordingly.

Leave granted.

The document read as follows-

AMENDMENT (1)

This is a technical amendment which replaces the following definition:

``appointed member'' means the President or a member referred to in paragraph 8 (1) (d).

The amendment is necessary because the member or members (without any special title) that were originally to be appointed under paragraph 8 (1) (d) are to be replaced by the appointment of a ``Human Rights Commissioner''. That Commissioner will have particular responsibilities in relation to the International Covenant on Civil and Political Rights, International Labour Organisation Convention No. 111 (which deals with discrimination in employment and occupation) and the three Declarations, dealing with the rights of children, the mentally retarded, and the disabled, which are attached to the Bill.

This arrangement will ensure that, in respect of each of the instruments in respect of which the Commission has functions, there will be a particular Commissioner with specific responsibility for discharging those functions.

AMENDMENT (2)

This amendment makes a number of minor changes to the original clause 8.

Perhaps the most significant change is the insertion of the office of Human Rights Commissioner. Under the new sub-clause (6), that Commissioner will have specific complaint handling functions in relation to the International Covenant on Civil and Political Rights, International Labour Organisation Convention No. 111 (which deals with discrimination in employment and occupation), the Declaration of the Rights of the Child, the Declaration on the Rights of the Mentally Retarded and the Declaration on the Rights of Disabled Persons.

This change ensures that there is a specific focus within the Commission for each of the community groups which are most affected by the Commission's work. Accordingly, the Government considers that, taken together with the advisory committees which can be established under clause 17 of the Bill, the new structure obviates the need for the part-time Commissioners which were proposed by Senator Missen earlier in this debate.

The Human Rights Commissioner will also have the Commission's responsibility for the day to day operations of the Commission. In this regard, I refer Honourable Senators to sub-clause 8 (5).

It is generally recognised that having too many part-time members on a body such as the Commission makes the body very difficult to manage. The Government's proposals achieve the efficiency and cost-effectiveness of a small, cohesive Commission, while at the same time ensuring that the Commission has adequate access to the views of relevant sectors of the community.

AMENDMENT (3)

Sub-clause 17 (1) of the Bill deals with the appointment of advisory committees. The proposed amendment, which has been suggested by the Australian Democrats, makes it clear that the Minister must appoint at least one advisory committee. The Government anticipates that that Committee will, in effect, take the place of the present National Committee on Discrimination in Employment and Occupation.

The Government's other proposals in relation to advisory committees remain unchanged.

Background

Besides the National Committee on Discrimination in Employment and Occupation, there are presently seven State and Northern Territory Committees which do work in the same area. The question of whether there needs to be advisory committees on the Convention in all or any of the States and the Territory has yet to be resolved, but may well be approached on a State-by-State basis.

Paragraph 20 of the Explanatory Memorandum to the Bill sets out the Government's ``other proposals in relation to advisory committees''. That paragraph says:

It is at this stage proposed to establish:

an Advisory Committee comprising the heads of State equal opportunity bodies to advise on matters such as co-ordination of procedures under Commonwealth/State co-operative arrangements developed under clause 16; and

regional Advisory Committees, which will keep the Commission in touch with community opinion and assist the Commission in its public information and promotion work.

AMENDMENT (4)

This amendment, whilst it replaces in total the present clause 19 of the Bill, effectively only adds to that clause new sub-clauses (2) and (7). The effect of those additions is to recast the power of delegation in the Bill so that both the Commission and a member of the Commission may delegate. The Bill as it stands only permits the Commission to delegate.

AMENDMENT (5)

This amendment recasts clause 36 of the Bill to allow for the appointment of an acting Human Rights Commissioner as well as an acting President. There is no great change of substance to the provision.

AMENDMENT (6)

The effect of this amendment is that the President and the Human Rights Commissioner are to be appointed for maximum terms of 7 years. The increase in the maximum term of appointment will, in the Government's view, increase the prospects of attracting the best possible persons for the positions. It remains open to the Government to make an appointment of shorter duration in appropriate cases.

AMENDMENT (7)

The effect of this amendment is to vest in the Human Rights Commissioner the functions of a Secretary under the Public Service Act. The day-to-day staffing matters associated with the Commission will, therefore, be in the hands of the Commissioner who is responsible for administering the other day-to-day affairs of the Commission (see sub-clause 8 (5)).

AMENDMENTS (8) AND (9)

These amendments remove additions proposed made by Senator Missen earlier in this debate. His proposals in relation to clause 44 were related to his proposals in relation to the constitution of the Commission (clause 8), and are not now appropriate in the light of the Government amendments to clause 8.

Background

Senator Missen's proposed amendments to clause 44, which were agreed to by the Committee of the Whole in the Senate in March, were as follows:

Sub-clause 44 (3), line 6, before ``At a meeting'', insert ``subject to sub-section (3a)''.

After sub-clause 44 (3), insert the following new sub-clause: ``(3a). Between meetings of the Commission the President may, at any time, convene a meeting of the full-time members of the Commission which meeting may, subject to the control of the Commission, carry out the day to day affairs of, and perform the functions of, the Commission and for the purposes of such a meeting of the Commission a quorum is constituted by a number of full-time members that is not less than one half of the number of full-time members for the time being holding office under section 8.''.

These amendments were intended to allow the full-time Commissioners to control the day-to-day affairs of the Commission between meetings of the full Commission (which was, under Senator Missen's proposals, intended to consist of 3 or 4 full-time members and 6 or 7 part-time members).

AMENDMENT (10)

This amendment has the effect that if the President is not present at a meeting of the Commission and the Human Rights Commissioner is, the Human Rights Commissioner shall preside. If neither the President nor the Human Rights Commissioner is present, the members present shall elect one of their number to preside.

It is appropriate that the Human Rights Commissioner, who is responsible for the conduct of the day-to-day affairs of the Commission, should preside in the absence of the President.