Senator BOLKUS (12:32 PM) —I rise to speak in this debate on the Human Rights Legislation Amendment Bill (No. 1) 1999 and, in doing so, take the opportunity to indicate that this bill, though seen by the opposition as an important bill, is one which is also masking another attack on the human rights of Australians, particularly the rights of disadvantaged people in our community.

This bill presents an important opportunity to look at the government's human rights record. It is a bill that cannot be debated in isolation because, though it does present and represent the government's response to the Brandy decision, it does contain further attacks on the disadvantaged—those who suffer discrimination in the Australian society. It is yet another of a series of actions that have been undertaken by this government, actions that are depriving many hundreds of thousands of Australians of the right to access justice and to hold government accountable.

Basically what we are seeing in the government's strategic approach to this area is a denial of access. This government is attacking the rights held by Australians by making cuts to a wide variety of justice related services—including, for instance, cuts to legal aid, the federal courts and tribunals and the family services program. The government has also increased fees for federal courts and tribunals and is considering limiting the rights of Australians to hold their government accountable through the Commonwealth's administrative law system.

It is worth noting at this point in the debate that, from the date of its election to the end of next year, in total, the government will have cut more than $400 million from services that help Australians access justice. Most importantly, it is those who are less well resourced who are denied access to justice. If there is one lesson that can be learned from the Victorian election over the last few days, it is that the community will no longer tolerate being denied access to services that they have been used to and which, I think quite rightly, they see as their right. One of those services is access to justice and, through that, accountability of government.

Foremost amongst the cuts that I have mentioned are the government's cuts to the Human Rights and Equal Opportunity Commission. The government has reduced funding for the commission from the $20.5 million provided in the 1996-97 financial year to $17.9 million in the 1997-98 financial year, to $12.3 million in the 1998-99 financial year. With the move to accrual accounting, the budget of the commission on paper has increased to $16.069 million. However, even this is a slight decline on the $16.099 million estimated as the accrual budget of the commission in 1998-99.

When the additional $470,000 provided to the Privacy Commissioner to meet his foreshadowed responsibilities for privacy in the private sector and the related capital injection of $89,000 are taken into account, the commission will, in effect, still have $600,000 less in 1999-2000 than it did in 1998-99. When all these factors are taken into account, the commission's budget will have been cut by some 50 per cent since the Howard government came into office, and that figure does not even take into account an adjustment for inflation.

As a result of the second round of cuts foreshadowed in the 1997 budget, the commission was forced, for budgetary reasons, to implement those cuts with effect from 1 January 1998. The government did not even provide the commission with ancillary funding to meet the inevitable costs of redundancies—and redundancies there have been. As a result of the cuts, the commission has been forced to sack approximately 60 of its 180 staff, or one in three—half the budget and one in three of the staff made redundant.

You cannot make those sorts of cuts without having some impact on access to the services of the human rights commission, its resources and, as a consequence, making government accountable. These cuts have caused the commission to effectively abandon the great bulk of its ongoing inquiry work. Instead, it has been forced to meet its essential statutory obligations to conciliate complaints. An exception to this is the report released recently by the Sex Discrimination Commissioner into pregnancy related discrimination. Apart from that, the commission now has shed some of its functions in a major way.

The actual effect of these cuts is completely at odds with the government's claims. This is probably another lesson that the government needs to learn from the weekend's election results. You cannot keep on doing things to the public and then say to them that something contrary or directly in conflict is happening. In this case, despite the staffing cuts and the shedding of functions, the Acting Attorney-General, Philip Ruddock, stated in the middle of 1997:

Reports in the media today contain incorrect claims that changes to the Human Rights and Equal Opportunity Commission (HREOC) will have a negative impact on disabled people.

However, the Human Rights Commissioner, Mr Sidoti, who is now the Acting Disability Discrimination Commissioner as well, confirmed in evidence to a Senate estimates committee shortly after Mr Ruddock's statement that the services provided by the Disability Discrimination Commissioner would be amongst those affected by the cuts. So, the cuts should be condemned, but the government's deceit in not telling some of the most disadvantaged in our community what the real effect of these cuts would be is also something that needs to be condemned.

Supposedly some cuts can be related to this bill, but I also want to note in this part of the debate that the government originally projected a cut of $1.5 million per year in the commission's 1996-97 budget to transfer the hearing function from the commission to the Federal Court of Australia. Some cuts and functions have been documented, but diddling of the books has also gone on in respect of HREOC. The hearing function was transferred to the Federal Court of Australia and a projected cut of $1.5 million was made to HREOC's budget because of what the government assessed was the cost of fulfilling that service by HREOC. Even that cut is unjustified. In terms of duplicity and wanting to do away with this commission, the government itself told the estimates committee that that function was only costing the commission some $600,000. So they took the opportunity to take another $1 million off the commission under the guise of shifting a function. The commission suffered and those who accessed the services of the commission suffered.

However, a broader part of the community has been suffering because of the cuts in general to legal aid across the nation. In its 1996-97 budget, the government announced a cut of $120 million over three years from legal aid funding from 1 July 1997. They decided to dismantle Australia's national unified legal aid system. Those two decisions have had a massive impact on the ability of Australians to enforce their human rights. This is particularly so in cases where there are discrimination law disputes which will now be determined by the Federal Court of Australia.

I would also like to draw the Senate's attention to the more detailed discussion of the effects of the cuts to legal aid funding as contained in the Senate Legal and Constitutional References Committee's first, second and third reports on Australia's legal aid system. I will not discuss the impact of these cuts here, but it is worth noting that the impact of those cuts was all-pervasive across the community. I also noted the effect of the changes to the guidelines to legal aid. As I say, the cuts have been quite pervasive but the Commonwealth-state legal aid agreements which came into effect on 1 July 1997 contain the following guideline with respect to the funding of equal opportunity and discrimination cases. That guideline says:

5.1 The Commission may grant assistance for equal opportunity/discrimination cases where there are strong prospects of substantial benefit being gained not only by the applicant but also by the public or any section of the public.

This guideline has to be totally unacceptable because it unfairly excludes people suffering discrimination from access to legal aid. The guideline achieves this effect by providing a number of qualifiers to the standard merits and financial hardship tests that an applicant is required to demonstrate. From now on, not only do applicants have to meet the financial hardship test and the merits test but they have to show that they have a strong prospect of success, that those prospects are directed towards the attainment of a substantial benefit, and that the benefit not only be acquired by that individual but must serve a broader public interest, or otherwise be in the interests of a section of the public.

These additional requirements have been applied arbitrarily as other civil litigants are not required to demonstrate similar matters to access legal aid. I am sure the government knows that these additional requirements will effectively exclude large numbers of people adversely affected by discrimination from access to legal aid. I have to say that these additional requirements are simply unacceptable as a matter of principle. The creation of equality of opportunity and the elimination of discrimination are matters which derive substantial benefits not only to the individual complainant, but also to a whole class of persons to which that complainant belongs and to the community as a whole. By mere example, mere definition and mere decision, a decision can have an impact on a broader range of people. Putting all this together, we have had an attack on HREOC and we have had an attack on legal aid. We have also had an unfair discriminatory exclusion from access to legal aid for those who deserve that access the most.

I will take this opportunity to turn to the legislation and indicate some of the flaws that the opposition finds with it. This legislation has two fundamental objectives. The first is to ensure that discrimination determinations can be enforced in a timely, effective and efficient manner in accordance with the ruling of the High Court in Brandy v. Human Rights and Equal Opportunity Commission. The second is to implement a restructuring of the commission's complaint handling mechanisms. We acknowledge that, since the Brandy decision was handed down in early 1995, it has been necessary to vest the power to make enforceable determinations in a body exercising the judicial power of the Commonwealth pursuant to chapter III of the Constitution. Following the Brandy decision, the previous Labor government introduced interim procedures for the handling of discrimination complaints, procedures which effectively reinstated the system that had applied to discrimination complaints prior to 1993. These arrangements provide for an initial determination to be made by the commission, which determination, if acceptable to the parties, operates subject to their goodwill and continued compliance. Determinations of the commission as such are not legally enforceable.

Under this scheme, enforceable determinations require a fresh hearing of the dispute and a determination by the Federal Court. It has always been our view that the continued operation of the pre-1993 regime is inappropriate. This is because of the need for a second hearing by the Federal Court of a complaint for a determination to be enforceable. We believe that the current mechanism is unwieldy and places all parties at a financial and temporal disadvantage. So there is a strong and clear public interest in disputes being enforceable once determined. We support the creation of a special human rights registry within the Federal Court of Australia, as provided in the bill, as the most appropriate and cost-effective way to give effect to this purpose.

We also support the bill's effect in giving the commission the power to conciliate disputes. Under the proposed arrangements, as set out in the bill, complaints are lodged with the Federal Court which then transfers the matter to the commission for conciliation. The executive president of the commission is responsible for administering the conciliation function, although the role will be largely performed by specialist conciliators. Should the dispute not be capable of conciliation then the matter is referred to the Federal Court for determination.

We broadly support the structure of the bill. We see that as a necessary mechanism for the attainment of simplified and effective complaint determination procedures. However, as I will discuss more fully in the committee stage, we do believe there is a need for a number of important amendments to ensure that the rights of complainants are protected and they are able to access those rights.

In closing—and I indicate that much of our complaints will be detailed in the committee stage, and there is no need to duplicate the debate at this stage—I want to make one particular point in terms of process and the delay with this legislation. On 3 March 1998 the Attorney-General issued a press release accusing the Labor Party of delaying the passage of this legislation. In so doing the Attorney called on the Labor Party to stop `opposing' the bill. This was despite the fact that he knew that we had said that we generally supported the bill. The Attorney made his statement knowing that, when he first announced this proposal to create a human rights registry of the Federal Court, it was I, as shadow Attorney-General, who said in a media release dated 9 August 1996 that the proposal was consistent with previous Labor government policy and that we would support it.

The Attorney made his statement knowing that recommendation 3 of the minority report on the bill, signed by Senator McKiernan and me and dated 25 June 1997, stated:

The Labor members of the Committee support the passage of the Bill subject to the Parliament's agreement to the amendments set out below.

So what you have here is an Attorney who knew what was on the public record, who knew what was in the documentation of this Senate—a specific recommendation of me and Senator McKiernan—but then proceeded to put out a thoroughly untruthful statement. Why did he do this? Essentially he did this because he wanted to hide the fact that the only reason there has been a delay in having this bill dealt with is that he could not get sufficient priority for this legislation from his colleagues to have it debated in the Senate.

The Senate committee reported on this bill in June 1997, some 26 or 27 months ago. It first appeared on the Notice Paper in December 1997, some 21 or 22 months ago. It appeared after the Native Title Amendment Bill and therefore, as one could have expected, there would not have been sufficient time for it to be brought on for debate. The Attorney had a couple of goes at trying to bring it on for debate last year, but once again it was put down low on the list in terms of priority in every sitting week in the Senate that it was listed. Once again, those who put it there knew that it could not have come up for debate. As a result, it has been over two years since the Senate committee finished deliberating on this bill—two years in which the bill could have been debated in the Senate. The bill lapsed in the Senate because the Attorney could not convince his colleagues of the need to debate it before the last election.

Senator Ian Campbell —You filibustered on the native title bill and now you blame us.

Senator BOLKUS —If you go back to that debate, Senator Campbell, you will realise that that debate was treated quite expeditiously and that was acknowledged by Senator Minchin at the close of that debate. So a cheap shot from you at this stage of the proceedings is probably not going to assist proceedings for the rest of the week or the rest of the fortnight.

It is extremely disappointing that the Attorney has sought to blame others for his and the government's failure to give human rights issues the priority they deserve. If he had shown the same diligence in pursuing the interests of the victims of discrimination as he blames others for his own lack of action, then we would have finished debating this bill quite some time ago.

This is a bill that will have an extensive committee stage. We will be moving amendments, but we will not be moving all the amendments that I have circulated. There has been some fruitful discussion in recent weeks between the Labor Party and the government in respect of some of the issues that have been outstanding, and it took two years for the government to sit down with the opposition and discuss these issues. There are still some areas of disagreement.

While I have circulated all the original amendments proposed by the Labor Party in relation to the bill, I can advise that I propose now to move only amendments 1, 2, 12, 13, 14, 18, 20, 21 and 22 and when we get to the other amendments I will explain my reasons as to why I will not be moving them. I do not think I need to say much more at this particular stage of the debate. I know other colleagues want to speak on this legislation. I look forward to the committee stage of the debate.