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Monday, 20 September 1999
Page: 8360


Senator SCHACHT (1:50 PM) —I rise to speak on the Human Rights Legislation Amendment Bill (No. 1) 1999 . Again, as others from the opposition have indicated, in general we support the bill, but with a number of very important amendments which we trust the government will be able to support. The bill, as others have said, has had a long gestation period brought about by decisions of courts, even going to the High Court in the so-called Brandy case, and it goes back to the previous government. There have been Senate committees of inquiry—references committees and legislation committees. The bill was considered before the parliament was prorogued for the last election.

The government has again returned with a bill which deals with a number of human rights matters. As I say, some of these matters were previously brought about on the initiative of the then Attorney-General, Michael Lavarch, and the government has added some of its own. The first one is, of course, the Brandy case, in which the High Court found that the structure and operation of a part of the HREOC was unconstitutional, and therefore amendments had to be made. This matter was being dealt with by the then Attorney-General, Mr Lavarch, when the previous Labor government went out of office. I must say that Mr Lavarch, in his period as Attorney-General, made significant decisions in a number of areas aimed at improving human rights in this country and also arguing for human rights values in the wider international community. There is much that he can be proud of in his period as Attorney-General.

As I say, the opposition supports the bill overall but with reservations. We are proposing a number of amendments. A very important amendment which my colleagues have mentioned concerns the change in the structure of HREOC to abolish the five specialist commissioners that are now available to deal with Aboriginal and Torres Strait Islander matters, social justice, human rights and disability, racial and sexual discrimination and to replace them with three deputy presidents with responsibility for human rights and disability discrimination, racial discrimination and social justice, and sex discrimination and equal opportunity. There is a less specific and broader description of their responsibilities. We will be moving amendments opposing that change.

We believe that there is a very strong case for having specialist commissioners. It identifies in the public's mind that there is a remedy through HREOC to have issues they are concerned about dealt with. We believe HREOC still has a very important part to play in educating the public about the rights they have. It has been a new aspect in Australia's political, constitutional and legal history over the past 20 years to have an ever-expanding focus on human rights. I do not think anybody would deny the fact that it is long overdue for the public to have the right to have remedy in the law through an appropriate tribunal and then remedy to the court when they have been harshly done by.

Some have argued that this is social engineering, and there has been much criticism by conservatives that this is opening up a Pandora's box that leads to unnecessary litigation and disputation in the community—and that it encourages minority groups to launch vexatious legal cases to tie up the courts and disturb the longstanding legal and social arrangements we have in this community.

That is not a view the opposition has. Over the last 20-odd years or more, the Labor Party, in government and in opposition, has argued that, if we really want a democratic society, those who are disadvantaged and do not have access to the normal structures of our community should have the right to have their case heard.

Occasionally, those decisions of HREOC have led to consternation amongst conservative elements of our community. This has led to the government being pressured to get rid of the specialist commissioners who are often seen as being at the forefront of taking decisions that have affected longstanding traditions, conventions and operations in society. Therefore, we think it would be a backward step in the evolution of human rights in this country to have these specialist commissioners removed. I do not say that it would be a calamitous step to remove them and replace them with three deputy presidents with a more broadly defined role, but I think it would be unnecessary—and certainly the opposition thinks so.

The basic issue that we are arguing about in this bill and have argued about in related bills over the last 20 years is really that of access to justice. We accept that if you lack financial resources in this community your access to justice will be greatly curtailed and limited. In the late eighties and early nineties I was a member of the Senate legal and constitutional committee chaired by Senator Cooney which looked at the issue of the high cost of justice in Australia.


Senator Cooney —To be fair, you're the one who got the issue of the cost of justice going.


Senator SCHACHT —I thank Senator Cooney for his interjection that I played some role. Sometimes lawyers have a rather populist role in exposing the issues of the high cost of justice—


Senator Faulkner —Not populist, popular.


Senator SCHACHT —Populist and popular issues about the operation of the legal system in this country. Because of its high costs and its restricted nature it often disadvantaged ordinary Australians.

Some of the issues we raised initially have now been dealt with by both sides of politics, and we have now seen a much more genuine move to reform and change the structure of the legal system in this country so that ordinary Australians have access to justice without fear of being crippled financially by the cost. I notice that it is mentioned in this bill that the cost of justice per day—to take a Federal Court case—is $2,000. So one could not imagine any ordinary Australian—average citizen, average wages—faced with the cost of a $2,000 a day hearing in the Federal Court. It would be a big disincentive to take your matter up.

The opposition has made comments in the Senate minority report about how we think that could be better dealt with rather than just allowing the sledgehammer of high cost of legal fees to affect the ability of people to seek remedy, quite rightly, in the court. We also point out that we have complained strongly that in the last three years this government has substantially reduced the money available for legal aid under the guise that this is a state responsibility. We believe that already there are examples—I know it is the case in my own area of veterans affairs—of ordinary citizens being denied the right to appeal to the Administrative Appeals Tribunal or to the Federal Court, because they did not have access to legal aid funding. The cutback that the federal government has imposed on the legal aid system, now running into hundreds of millions of dollars, is one of the more disgraceful episodes on its record.

Debate interrupted.