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Wednesday, 26 November 1986
Page: 2812


Senator DURACK(6.18) —I ask Senator Gareth Evans how he envisages the new jurisdiction will work. I refer to Division 4, which is the one we are talking about, entitled `Functions relating to Equal Opportunity in Employment'. I conceded-and he made the point-that the functions of the Commission, when acting under this division, when it is doing so in relation to an act or practice done under a law of a State, within a State, on behalf of a State or an authority of a State, are different from the powers that the Human Rights Commissioner will have in respect of the exercise of his other jurisdictions under the Act. In particular, he will not be able to haul people before him, or whoever is conducting the inquiry. He will not be able to force them to answer questions, produce documents and so on, as though he were a judge. This, of course, has been one of the objections of many people to the powers of this Commission. The Commission is assuming the jurisdictions of the equal opportunity commissions, which were non-statutory, informal bodies. As far as I am aware, their activities were not publicised and apparently they achieved a solution to complaints in a very informal way.

Although this Divison excludes coercive powers, nevertheless there are some provisions which I believe will mean that the Commissioner exercising the jurisdiction we are talking about now will have significant powers. I refer particularly to clause 35. It provides that after an inquiry into an act or practice of the sort we are talking about, if the Commission finds that the act or practice constitutes discrimination, it is to serve a notice on the person who is alleged to have offended this prohibition setting out its findings and its reasons. It may include in the notice a recommendation preventing a repetition of the act. The notice may include any recommendation by the Commissioner for the payment of compensation to or in respect of a person who has suffered loss or damage as a result of the act or practice or some other action to reduce the loss or damage. The Commission shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations. The report shall also inform the Minister whether the person has taken any action.

So the Commission will be able to publicise the finding that there was discrimination in any one of the vast range of categories of discrimination, but may also include in its report a recommendation for the payment of compensation. If the act or practice is in relation to the Commonwealth Government I take it that the Commonwealth Government and not the public servant who has been guilty of the actual practice would pay the compensation. In the case of an act or practice of an individual-for instance, he may be a self-employed individual or employed by a company-if there is a recommendation for the payment of compensation who is the person who will pay the compensation? Will it be paid by the State Government, the Commonwealth Government or whatever? Admittedly, it cannot be enforced. There is no means to do it. There is a provision for a recommendation that compensation be paid. The legislation simply says that it should be paid to or in respect of a person who has suffered a loss as a result of this act or practice.

Coming to the point about the so-called lack of coercive powers, those powers that I have mentioned, of being able to force people to give evidence and produce documents and I presume to attend before the Commission to take part in conciliation and so on, are absent in the case of discrimination within the States as against a matter which is within the Commonwealth area. Nevertheless, there will be a fairly elaborate end to these proceedings along the lines of the clause I have read out. In particular, the matter will be published to the Minister, who can make hay if he likes to if he does not like the particular person or body concerned. He could make lots of political capital no doubt under the privilege of Parliament if he so desires. He could virtually force the person, by virtue of such publicity, to pay money which has been recommended. Generally speaking, a very undesirable result could occur even though there is no normal legal remedy provided for in this case as there is under the sex or race discrimination legislation. The Government seems to be proceeding on the basis that as there are no coercive powers we need not worry much about these things. I would like the Minister to explain just how the Government sees that particular provision of the Bill working in practice.