Senator VANSTONE (Justice and Customs) (4:00 PM) —I would like to make some comments to wind up the debate on the Human Rights Legislation Amendment Bill (No. 1) 1999 . I might bypass the general introductory remarks and go straight to the things that need to be said. In relation to the role of commissioners, a major reform in the bill involves the consolidation of the three complaint handling schemes contained in the racial, sex and disability discrimination acts into a single uniform scheme contained in the one act. The new scheme will simplify the complaint handling process and incorporate best practice procedural provisions. In addition, the president will be responsible for complaint handling under the new scheme. Centralisation will overcome deficiencies in the existing complaint handling processes and improve the commission's capacity to utilise its resources and to deliver services in a more efficient manner. It should also assist in promoting consistent and coordinated practices for all complaints.

That is not to say, however, that the expertise of commissioners will not be utilised in relation to the acts for which they are primarily responsible. Commissioners will have a new role in which they will be able to appear as an amicus, or friend, of the court in order to explain how they consider the antidiscrimination acts should be interpreted. The commissioners' expertise will also be utilised in the complaints area. The work done by commissioners in relation to their areas—in particular, any guidelines or reports prepared by them—will be taken into account in relation to the general approach to be taken on complaint handling. Thus, while commissioners will not be involved in handling individual complaints, as this would present conflicts of interest in relation to their amicus role, the president will have their assistance in the broader direction to be taken in relation to complaints.

I note that some have criticised the bill on the grounds that it may make it more difficult to pursue a complaint. This criticism appears to be based on factors such as the more formal nature of the Federal Court proceedings and the exposure to fees and costs. In response to those criticisms, the following points need to be made. First, the existing system, introduced by the previous government, can hardly be described as efficient or cost effective. There are potentially three levels of dispute resolution, two of which are unenforceable, causing unnecessary delay and expense. Under the proposed scheme, if conciliation is unsuccessful, the parties have direct access to the Federal Court, where they will be able to obtain an enforceable determination of their respective rights. The scheme has the potential to address significant delays in the current system and to reduce the costs associated with obtaining a binding determination in antidiscrimination matters.

Second, it has been claimed that the fees and costs to take cases to the Federal Court will be prohibitive. This bill has not proposed anything different from the current system. People seeking now to enforce determinations of the Human Rights and Equal Opportunity Commission in the Federal Court are subject to standard court fees and cost regimes. In this context, I also note that it is planned that the proposed Federal Magistrates Service will have jurisdiction over human rights complaints which have not been satisfactorily conciliated in the commission. Legislation to establish the magistrates service was introduced into parliament on 24 June 1999. One of the attractions of the service is that it will keep costs down for litigants. It will utilise streamlined procedures in a less formal judicial culture, which should allow for quicker resolution of cases. There should be reduced delays in having matters dealt with, which should lead to fewer interlocutory procedures and fewer court appearances by litigants and their representatives. Procedures before federal magistrates will be simplified, which will also act as a factor to reduce costs. Many litigants in the human rights jurisdiction are expected to be unrepresented, and they will also be helped by simplified procedures. All of these factors should help reduce costs and result in savings for litigants both in terms of time and money.

In relation to costs, the bill leaves open the possibility that a person taking a case to the Federal Court may be exposed to an adverse costs order. As I have said, this is no different from the current regime. The government has considered alternative approaches and, noting the Federal Court's wide discretion in this regard, considers that the standard regime provides the best protection for all parties and should continue to apply. Thus, while generally costs are awarded to the successful party, the court may decide that the special circumstances of a case indicate a different order should be made. The government considers that one of the main advantages of allowing the normal costs rules to apply is that more lawyers will be encouraged to represent indigent applicants in human rights disputes where a case has real merit.

This view was supported by the Human Rights and Equal Opportunity Commission in its evidence to the Senate Legal and Constitutional Legislation Committee back in 1997. The commission indicated that the growth in contingency arrangements—that is, don't win, don't pay—and the potential for a costs order against the opposing party are likely to give complainants a better chance of getting lawyers to act in discrimination cases without the payment of up-front legal fees. The commission has recently reiterated its view that normal costs rules should apply. The Law Council of Australia also supports the government's position.

It is not necessarily the case that people will need to engage lawyers to represent them in proceedings. The bill provides that parties may be represented by people who are not barristers or solicitors unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear. This will allow parties to be represented by a particular interest group or peak body—for example, by their trade union, a disabilities advocacy group, an Aboriginal legal service or a women's support service—or any other organisation providing assistance to people in the sex, race and disability discrimination fields. Senators should also note that, where there is hardship, either party to a proceeding will be able to apply to the Attorney-General for financial assistance for the proceedings. This will also assist in reducing the costs faced by a party to proceedings in the court.

On the matter of fees, while the government considers that the usual rule as to costs should apply in relation to human rights litigation, the government has noted the concerns raised in discussions with the commission, the Australian Democrats and disability groups in relation to court fees. I am pleased to advise the government has agreed that a flat $50 fee will apply to bringing discrimination cases before the Federal Court. This fee will be the only fee payable for human rights cases in the court. This change will be achieved by amending the Federal Court regulations, as is appropriate, rather than amending the bill.

The government regards the special fee arrangement as appropriate in the context of a system where the usual rule as to costs will apply to human rights cases in the Federal Court. Of course the normal rules under the Federal Court regulations as to a waiver of fees for those in financial hardship continue to apply so that those human rights litigants who qualify for a waiver will not be required to pay any fees. This measure, in combination with the introduction of a Federal Magistrates Service, will significantly reduce the costs associated with human rights litigation under the new arrangements.

There have been some general matters raised in relation to access and equity, and the bill contains a number of initiatives designed to reduce formality in Federal Court proceedings which will possibly lead to less reliance on legal representation. The court will be able to adopt informal procedures as it will not be bound by technicalities or legal forms. Although the bill makes no provision as regards the rules of evidence, the court will have the usual discretion to waive the application of the rules in appropriate circumstances.

In addition, the commission is naturally interested in the conduct of human rights litigation in the Federal Court and currently reviews case law as part of its responsibilities for administering human rights legislation. The commission has indicated that it would continue to undertake this role and would draw the government's attention to any concerns it may have if it considers that formality or technicality has compromised decisions and therefore the effectiveness of this legislation. The Attorney-General's Department of course also monitors the case law and would bring any such concerns to the government's attention.

When the bill was being debated in the House, the opposition moved amendments seeking to extend the definition of a discriminatory act under an award beyond the provisions contained in the Sex Discrimination Act. The Sex Discrimination Act currently includes a power to refer discriminatory awards and agreements to the Australian Industrial Relations Commission and discriminatory determinations to the Remuneration Tribunal or the Defence Force Remuneration Tribunal. The opposition's amendments sought to extend this referral power to the Racial Discrimination Act and the Disability Discrimination Act.

The government has no in principle objection to the opposition's proposal, but the drafting resources required to properly give effect to the proposal are substantial and we consider that it would be better to leave consideration of this issue until a later date. The Attorney-General's Department is currently undertaking a review of all Commonwealth human rights and antidiscrimination legislation, with a view to consolidating that legislation into one act. The government undertakes to ensure that the opposition's proposals are considered in that process.

In the debate Senator Evans criticised the government in relation to recent processes for the prescription of laws pursuant to 47(2) of the Disability Discrimination Act. That act indicates that responsibility for consultation with relevant stakeholders lies with the individual state or territory which is seeking to have its legislation prescribed. To ensure that this process occurs, the Attorney-General has undertaken to seek formal assurances from the relevant state or territory minister that any necessary consultation with all stakeholders has taken place before any prescriptions under the act are undertaken. In addition, the Human Rights and Equal Opportunity Commission and the Office of Disability in the Department of Family and Community Services will be consulted on any future proposed prescriptions.

Senator Bolkus and Senator Cooney raised the issue of legal aid funding for human rights matters. The proposed new section 46PU of the Human Rights and Equal Opportunity Commission Act provides for a scheme of financial assistance for matters arising in the Federal Court. The scheme provides that applications for assistance may be made to the Attorney-General by a person who has commenced or proposes to commence proceedings before the Federal Court and the Attorney may authorise assistance if satisfied that to refuse assistance would involve hardship and it is reasonable in all of the circumstances to grant the application. Any grant of assistance may be made with or without conditions.

Discrimination matters which are likely to be of public benefit continue to be a Commonwealth priority for assistance. That is reflected in the priorities and guidelines the Commonwealth has established in the legal aid funding arrangements that it has made with the states and territories. In addition, the Commonwealth will continue to provide funding for assistance in disability discrimination cases through the community legal service network. I think that covers the points that were raised that need to be answered. I thank all senators for their contribution to the debate.

Question resolved in the affirmative.

Bill read a second time.