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Human Rights Legislation Amendment Bill (No. 2) 1999
Bills Digest No. 146 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official l egal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commencement: The Act will commence on a day to be fixed by Proclamation, which is to be after the first day on which all of the items of Schedule 1 of the Human Rights Legislation Amendment Act (No. 1) 1999 have commenced. If the Act has not commenced within the period of 6 months after receiving Royal Assent or six months after the Human Rights Legislation Amendment Act (No. 1) 1999 receives Royal Assent, it commences on the second day after the end of that 6 months.
Items 13, 16, 90, 95 and 96 and Part 4 of Schedule 1 and item 20 of Schedule 2 do not commence if the Privacy Amendment (Office of the Privacy Commissioner) Act 1999 has already commenced. If that Act has not already commenced, items 17 and Part 4 of Schedule 1 commence immediately after that Act commences.
- rename the Human Rights and Equal Opportunity Commission the Human Rights and Responsibilities Commission
- restructure the new Commission by abolishing the five specific commissioners responsible for Aboriginal and Torres Strait Islander social justice, human rights, disability, racial and sex discrimination and replacing these commissioners with three Deputy Presidents with responsibility for:
- human rights and disability discrimination
- racial discrimination and social justice and
- sex discrimination and equal opportunity
- create a requirement that the Attorney-General must grant approval before the Commission can seek leave of a court to intervene in a court proceeding related to human rights and discrimination.
The majority of the provisions of this Bill were originally introduced into the House of Representatives on 8 April 1998 as the Human Rights Legislation Amendment Bill (No. 2) 1998 (hereafter ‘the 1998 Bill’). Parliamentary debate on the original Bill was not completed before the 38 th Parliament was prorogued.
Following a recommendation by the Selection of Bills Committee, the Senate referred the 1998 Bill to the Senate Legal and Constitutional Legislation Committee on 14 May 1998, for inquiry and report by 10 August 1998. An interim report was presented on 10 August 1998, however before the final report of the Committee could be tabled, the 1998 Federal election was called. After the election, the provisions of the 1998 Bill were referred to the re-constituted Committee on 12 November 1998, for report by 1 December 1998. This reporting date was delayed and the Committee’s report was tabled on 17 February 1999.(1) The Majority Report of the Committee generally recommended passage of the Bill, although it also recommended several significant changes. The Minority Reports of the Opposition and the Australian Democrats recommended against passage of the Bill. These findings are detailed in the Concluding Comments section of this Digest.
The Human Rights and Equal Opportunity Commission (HREOC) is a statutory authority comprised of a President and six specialist Commissioners. HREOC’s broad objective is to promote respect for and observance of human rig hts and it is primarily responsible for administering the Commonwealth’s anti-discrimination regime as enacted in the Racial Discrimination Act 1975 , the Sex Discrimination Act 1984 , the Human Rights and Equal Opportunity Act 1986 , the Privacy Act 1988 and the Disability Discrimination Act 1992 . The Native Title Act 1993 also confers additional functions on the Aboriginal and Torres Strait Islander Social Justice Commissioner. Central aspects of HREOC’s current functions include the handling and conciliation of complaints made to HREOC, research into systemic forms of discrimination, educative and advocacy roles and advising government on legislation and policy affecting human rights and discrimination issues. In addition, HREOC is responsible for overseeing Australia ' s obligations under seven key human rights instruments.
This wide ranging human rights and anti-discrimination regime has been developing for over two decades and represents a legislative attempt to ensure that the democratic aspiration of equality for all is substantively realised. The reach of Australia’s hum an rights laws has been significantly influenced by the United Nations’ codification of human rights norms. The institutional mechanisms to handle human rights and discrimination complaints have incrementally broadened as a way of securing an effective legal framework to respond to this increasing range of actionable human rights issues. The past few years have seen Government proposals for a contraction and streamlining of the operation and structure of the HREOC and this Bill is an important part of this policy direction. In order to place the Bill in context, an historical overview of Commonwealth human rights legislation is provided below.
Human Rights Bill 1973
In 1973, the first Human Rights Bill was introduced into the Commonwealth Parliament. The Bill was based on the International Covenant on Civil and Political Rights , and provided for a Human Rights Commissioner who would settle complaints under the Bill. This Bill was not passed prior to the 1974 double dissolution and was not reintroduced.
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 (RDA) was the first piece of Commonwealth human rights legislation and was implemented as a condition precedent for Australia’s ratification of the United Nations Convention on the Elimination of All Forms of Racial Discrimination . The RDA established a Community Relations Commissioner, who was empowered to receive, and attempt conciliation of, complaints of racial discrimination in specified situations (for example, employment, education, provision of goods and services). If conciliation failed, the aggrieved person could initiate proceedings in a court. The RDA also provided that all persons had the right of equality before the law, thereby empowering a person aggrieved to make a complaint to a civil court directly.
Human Rights Commission Act 1981
After the constitutional crisis of 1975, the Liberal Government made two attempts in 1977 and 1979 to introduce and pass a Bill for a Human Rights Commission. T hese both failed due to the calling of a snap election and Senate opposition. Following an election commitment by the Liberal Government to continue with the 1979 Bill, the Parliament passed the Human Rights Commission Act 1981 . During the Second Reading Speech, the then Attorney-General Senator Durack highlighted the dual aspects of the Commission’s role in protecting human rights through complaint mechanisms and promoting human rights through research and educative programs, noting that:
In an era … in which governments exercise wide powers and corporations and large institutions greatly influence the lives of individuals, it is important to have an agency that is active in the protection and promotion of rights of the individual.(2)
This Act established the Human Rights Commission, comprised of seven part time Commissioners and one full-time Commissioner, which had inquiry and conciliation powers and research responsibilities in relation to the rights outlined in the international conventions scheduled to the Act ( International Covenant on Civil and Political Rights , Declaration on the Rights of Mentally Retarded Persons , Declaration on the Rights of Disabled Persons , Declaration on the Rights of the Child ). Where appropriate, the Commission was to endeavour to effect a settlement of a complaint and was empowered to serve a notice on a person of its findings. However, these findings had no binding status.
The RDA was also amended so that the Commissioner for Community Relations was transferred to the new Commission and was subject to the directions of the Commission.
Sex Discrimination Act 1984
In 1984, after prolonged and controversial debate, the Sex Discrimination Act 1984 (SDA) was enacted. The SDA sought to implement to some degree Australia’s obligations under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women . It prohibited discrimination on certain grounds (for example, sex, marital status, pregnancy, sexual harassment) in specified areas (for example employment, education, housing).
Reflecting the RDA, the SDA provided a right of complaint to the Human Rights Commission, and established a Sex Discrimination Commissioner, who was subject to the directions of the Commission. The Sex Discrimination Commissioner was empowered to attempt c onciliation of complaints, and if conciliation failed, the Commission was empowered to conduct an inquiry into the complaint and make relevant declarations as to the status of the complaint. However, these declarations had no binding status and if an enforceable determination was required, the Commission or complainant could initiate proceedings de novo in the Federal Court.
Human Rights and Equal Opportunity Commission Act 1986
The Human Rights and Equal Opportunity Act 1986 (HREOCA) reflected the Commission’s increasing role in the protection of human rights. HREOCA extended the name of the Human Rights Commission and restructured the operation of the Commission, establishing a Human Rights Commissioner responsible for, among other things, complaints in relation to the scheduled human rights instruments (see above).
The Community Relations Commissioner was re-named the Race Discrimination Commissioner, in order to align the title with the Sex Discrimination Commissioner and the HREOC was empowered to make determinations and declarations in relation to race discrimination consistent with its powers concerning sex discrimination. Finally, all three Commissioners were made members of the HREOC, rather than being subject to directions from the HREOC. This shift in status was implemented to strengthen the HREOC by ensuring the ‘new Commission will have an effective and cohesive leadership.’(3) The focus of the HREOC ’ s work continued to be the dual role of protecting human rights via complaint handling and conducting research and educative programs into discrimination.
Privacy Act 1988
The Privacy Act 1988 gives effect to the Organisation for Economic Co-operation and Development (OECD) Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, as well as Article 17 of the International Covenant on Civil and Political Rights (scheduled to HREOCA). The Act established a Privacy Commissioner, who is a member of HREOC, and who has responsibility for investigation into complaints that an act or practice of an agency has breached information privacy principles, to examine proposed enactments which may require acts which breach privacy principles and to conduct research and education concerning privacy matters.
Disability Discrimination Act 1992
In 1992 , the Disability Discrimination Act (DDA) was enacted. Although no international convention exists in relation to disability, the DDA reflected principles found in the United Nations Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons , both of which were scheduled to the Human Rights Commission Act 1981 and HREOCA. The DDA generally mirrors the structure and principles of the RDA and the SDA, and provides for a Disability Discrimination Commissioner to administer the Act and conciliate complaints, empowers the Commission to inquire into unconciliated matters and provides for a focus on research and education. Unlike the RDA and the SDA, the DDA also provides for the Minister to develop disability discrimination standards, which are legally enforceable once tabled in Parliament.
Aboriginal and Torres Strait Islander Social Justice Commissioner
In 1993, as part of the Federal Government ' s response to the Inquiry into Aboriginal Deaths in Custody, the Aboriginal and Torres Strait Islander Social Justice Commissioner was established as a full time member of the Commission. Unlike the other four Commissioners, the Aboriginal and Torres Strait Islander Social Justice Commissioner was not empowered to investigate and determine complaints (as this remained the role of the Race Discrimination Commissioner). His or her role was to report annually to the relevant Minister regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders. Section 209 of the Native Title Act 1993 also placed specific reporting requirements on the Commissioner in relation to the operation of native title laws.
Enforcement of HREOC determinations
Finally, another notable Commonwealth human rights law was the Sex Discrimination and Other Legislation Amendment Act 1992 . This Act sought to rectify the inefficiency of the tripartite structure which then existed for resolving discrimination complaints, which comprised attempted conciliation; if conciliation failed, a Commission inquiry with the power to make unenforceable determinations; and finally possible de novo Federal Court proceedings if an enforceable determination was required. The Act provided for registration in the Federal Court of a determination by the Commission in relation to a complaint of race, sex or disability discrimination. Once registered, the Commission ' s determination would have effect as if it were an order of the Federal Court unless the respondent applied to the Court with 28 days for review of the determination.
In Brandy v Human Rights and Equal Opportunity Commission ,(4) the High Court decided that this scheme of registering determinations granted a non-judicial body the power to enforce its decisions, a power reserved only for judicial bodies. Accordingly, the scheme breached the doctrine of the separation of powers and was invalidated as unconstitutional. As an interim response, the Government resuscitated the pre-1992 tripartite scheme, and a more detailed response has been proposed in the Human Rights Legislation Amendment Bill 1998, discussed further below.
Between 1997-99, HREOC’s budget was decreased from $19.3m to $12.3m,(5) a two year decrease of over 36%. This funding reduction provides one of the most significant savings for the Attorney-General’s portfolio in the past two budgets. The Attorney-General has stated that the reduction in HREOC's funding in the 1997-98 budget is ‘in real terms only the 4% dividend efficiency saving applicable to all agencies within the Attorney-General’s portfolio’ and that the further reduction in HREOC’s funding in subsequent years amounts in real terms to only about 27%.(6) The Attorney-General has further stated that a ‘reduction in funding to [the HREOC]…reflect[s] a need across Government to ensure that in difficult financial times funds are applied and directed in an efficient and streamlined manner.’(7) Specifically, the Attorney-General justified HREOC's funding decrease, particularly the significant decrease in 1998-99, on two major efficiency grounds.
Firstly, the Attorney-General has stated that the HREOC’s ‘growth over the last decade has been disproportionate to that in other areas of government. Over the past nine years funding to HREOC has increased from about $4 million to more than $20 million — a 500% increase.’(8) HREOC has responded that additional funds have been provided only to handle new responsibilities given to it by the Government or Parliament.(9) These new responsibilities granted by Parliament include the conciliation, inquiry, educative and advocacy functions established by the Privacy Act 1988 , the Disability Discrimination Act 1992 and the Racial Hatred Act 1995 ; and the research, educative and advocacy functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner, established in 1993.
The second justification suggested for the reduction in HREOC’s funding is that it reflects a re-structure of, and proposed reduction in, HREOC’s functions as set out in the Human Rights Legislation Amendment Bill 1998. HREOC has stated that the inquiry/determination function comprises only a small percentage of its complaint handling work and accounts for only 4% of its budget.(10)
Prior to the introduction of the Bill, considerable public debate occurred concerning the importance of maintaining specific HREOC Commissioners, as the Att orney-General had on a number of occasions indicated his view that specialist commissioners would be abolished in favour of general commissioners.
This debate took place primarily in relation to the status of the Sex Discrimination Commissioner. The forme r Sex Discrimination Commissioner, Ms Sue Walpole, resigned in February 1997, 11 months prior to the expiration of her term. Ms Walpole cited personal reasons for her resignation, however in a press interview several weeks later she warned that a policy vacuum was developing in the Government’s approach to women’s human rights and sex discrimination.(11) Between February and June 1997, no-one was appointed to the position of acting Sex Discrimination Commissioner. Instead, the HREOC delegated some of the Commissioner's complaint handling powers to the Privacy Commissioner and the Race Discrimination Commissioner. On 3 June 1997, the Privacy Commissioner was appointed as the Acting Sex Discrimination Commissioner for a period of 3 months, which was extended until 8 March 1988, when the new Commissioner, Ms Susan Halliday, was announced.
Concern that the delay in appointment of a Sex Discrimination Commissioner indicated a firm Government intention to abolish specialist Commissioners was widespread and included criticism by Liberal party women(12) and non-government organisations chosen to consult with the Government on women’s issues.(13) One Liberal woman lobbyist was quoted as saying ‘I’m so sick of fighting to keep the gains that we’ve got ... We’re having to fight so bloody hard to keep anything, let alone advance anything.’(14) A typical criticism advanced by a former Sex Discrimination Commissioner, Ms Quentin Bryce, stated that the loss of a specific sex discrimination commissioner would result in a loss of expertise on women’s issues, a loss of validation of specific forms of discrimination suffered by women and a possible downgrading of women’s issues within the Commission.(15)
In an unusual move, the United Nations Committee on the Elimination of Discrimination Against Women (charged with overseeing obligations under the Convention on the Elimination of All Forms of Discrimination Against Women ) stated in an assessment of Australia ’ s current women ' s human rights record that it ‘ was concerned about the delay in appointing a Sex Discrimination Commissioner ’ .(16)
When the Government declined to extend the term of the former President of HREOC Sir Ronald Wilson, (who was at odds with the Government over key recommendations of the national inquiry into the separation of Aboriginal and Torres Strait Islander Children(17)) these concerns were widened to encompass the opinion that abolition of specific commissioners partly resulted from the Commissioner’s critical approach to Government action.(18)
In light of this significant debate, it was reported that the Attorney-General ’ s original cabinet submission recommending replacement of specific commissioners by generic commissioners was withdrawn in late July 1997.(19) In late September, it was reported that Cabinet had made an ‘ in principle ’ decision to retain the position of a Sex Discrimination Commissioner,(20) a decision which was greeted as a victory by Liberal women and non-government organisations.(21) On 23 September 1997, the Attorney-General issued a press release announcing the Government ’ s intention to establish the Human Rights and Responsibilities Commission, comprised of a President and three Deputy Presidents with general responsibilities for sex discrimination and equal opportunity, human rights and disability discrimination and Aboriginal and Torres Strait Islander social justice and racial discrimination.(22)
President of HREOC : Professor Alice Tay, whose appointment was announced on 8 March 1998. Professor Tay replaced Sir Ronald Wilson, whose term expired on 31 July 1997.
Human Rights Commissioner : Mr Chris Sidoti, whose term expires in August 2000.
Sex Discrimination Commissioner : Ms Susan Halliday, whose appointment was announced on 8 March 1998. Ms Halliday replaced Ms Sue Walpole who resigned in February 1997.
Race Discrimination Commissioner : Ms Zita Antonios, whose term expires in September 1999.
Disability Discrimination Commissioner : vacant. The term of the former Commissioner, Ms Elizabeth Hastings, expired in December 1997. The Human Rights Commissioner, Mr Chris Sidoti, has been Acting Disability Discrimination Commissioner since that time.
Aboriginal and Torres Strait Islander Social Justice Commissioner : The term of the first Commissioner, Mr Michael Dodson, expired on 22 January 1998 and he was not reappointed. The Race Discrimination Commissioner, Ms Zita Antonios, was appointed as Acting Commissioner for a period of one year. On 3 March 1999, Dr William Jonas AM was appointed as the new Aboriginal and Torres Strait Islander Social Justice Commissioner for a period of five years, starting from 6 April 1999.
The Human Rights Legislation Amendment Bill 1998 (originally introduced on 4 December 1996 as the Human Rights Legislation Amendment Bill 1996), was introduced on 3 December 1998. It was passed by the House of Representatives on 11 March 1999, but at the time of writing has not yet been debated by the Senate.
The Bill proposes several significant structural changes to the operation of Commonwealth human rights legislation.
- In response to the Brandy decision, the Bill repeals HREOC’s inquiry/determination functions and implements a scheme by which complaints not resolved through conciliation may be continued by way of an application to the Federal Court in order to obtain an enforceable determination. This proposal reflects both the Coalition's Law and Justice election policy and proposals by the previous Government.
- A judge may delegate to a judicial registrar most of the court’s human rights powers, with a view to providing as informal and accessible a court hearing as is constitutionally possible. However all registrar decisions are reviewable by a judge on application by one party.
- The Bill proposes to centralise all complaint investigations and conciliation procedures that arise under the DDA, the RDA and the SDA in the office of the President of HREOC, rather than vesting those powers with specific Commissioners.
- The Bill also provides that specific Commissioners can apply to the Federal Court to act as amicus curiae (‘ friend of the Court ’ ) in relation to an unconciliated anti-discrimination matter. This new power is seen as partly balancing specialist Commissioners ’ loss of power in relation to conciliation.
See Bills Digest No. 115 1998-99 for a more detailed discussion.
Privacy Amendment (Office of the Privacy Commissioner) Bill 1998
The Privacy Amendment (Office of the Privacy Commissioner) Bill 1998 was introduced on 9 December 1998. This Bill is similar to provisions in the original Human Rights Legislation Amendment Bill (No. 2) 1998 concerning creation of an Office of the Privacy Commissioner independent of the Human Rights and Equal Opportunity Commission. The Bill was passed by the House of Representatives on 17 February 1999. For further discussion, see Bills Digest No. 111 1998-99.
Human Rights and Responsibilities Commission Act 1986
Items 1 and 2 amend the title Human Rights and Equal Opportunity Commission Act 1986 to the Human Rights and Responsibilities Commission Act 1986 .
Item 4 amends the definition of ‘the Commission’ from the Human Rights and Equal Opportunity Commission to the Human Rights and Responsibilities Commission.
All references in the HREOCA, the DDA, the RDA and the SDA to the Human Rights and Equal Opportunity Commission Act 1986 and the Human Rights and Equal Opportunity Commission are consequentially amended to reflect these name changes.
Item 18 in effect repeals the definition of the Human Rights Commissioner in HREOCA.
Items 6, 8 and 9 consecutively repeal the definition in HREOCA of the Disability Discrimination Commissioner, the Race Discrimination Commissioner and the Sex Discrimination Commissioner. These repeals are mirrored in amendments to the DDA, the RDA and the SDA.
Items 73 and 87 repeal the definition and establishment of the Disability Discrimination Commissioner in the DDA.
Items 106 and 126 repeal the definition and establishment of the Race Discrimination Commissioner.
Items 130 and 143 repeal the definition and establishment of the Sex Discrimination Commissioner.
Item 12 deals with the composition of the Human Rights and Responsibilities Commission. It repeals the current list of:
- Human Rights Commissioner
- Race Discrimination Commissioner
- Aboriginal and Torres Strait Islander Social Justice Commissioner
- Sex Discrimination Commissioner
- Privacy Commissioner
- Disability Dis crimination Commissioner
and replaces it with:
- Deputy President responsible for human rights and disability discrimination
- Deputy President responsible for racial discrimination and social justice
- Deputy President responsible for sex discriminati on and equal opportunity.
Notably, the only specific title not retained is the Aboriginal and Torres Strait Islander Social Justice Commissioner. Item 13 provides that the Privacy Commissioner is a member of the Commission until the Privacy Act (Office of the Privacy Commission) Act 1999 commences.
Item 19 in effect provides that to be qualified for appointment as a Deputy President, the Governor-General must be satisfied that the person has ‘ appropriate qualifications, knowledge or experience. ’ The terms and conditions of appointment reflect those currently provided in HREOCA for the Human Rights Commissioner.
Functions of the Human Rights and Responsibilities Commission
Item 20 reorders the functions of the Commission to provide a focus on the following:
- promoting understanding, acceptance and publi c discussion of human rights and the responsibilities of persons and organisations to respect those rights
- disseminating information on human rights and the responsibility of persons and organisations to respect those rights
- undertaking research, educational and other programs promoting human rights on behalf of the Commonwealth
- preparing and publishing guidelines concerning human rights which can be conciliated by the Commission.
Currently, these functions of the Commission are provided for in HREOCA, exce pt for the function of disseminating information, although this is arguably covered by the Commission’s incidental power. These functions, however, have been ‘upgraded’ to underline their new importance. The only proposed ‘higher’ functions of the Commission are to:
- carry out those functions conferred by the RDA, the SDA and the DDA (currently section 11(1)(a)) and
- inquire into and attempt conciliation of a complaint of unlawful discrimination (proposed by the Human Rights Legislation Amendment Bill 1998).
Item 34 mirrors the amendments made in item 20 in relation to re-arranging the existing functions of the Commission relating to equal opportunity in employment. It provides that the functions of the Commission shall be to:
- promote understanding, acceptance and public discussion of equal opportunity in employment and the responsibility of persons and organisations to respect that equality
- disseminate information on equality of opportunity in employment and responsibilities of persons and organisations to respect that equality
- undertake research and educational programs on behalf of the Commonwealth promoting that equality
- prepare and publish guidelines for avoiding acts or practices which transgress these rights and responsibilities.
All these functions are a lready specifically in the Act, except for dissemination of information which is arguably covered by the Commission ’ s incidental function.
Consequential changes to the functions of the Commission in relation to the DDA, the RDA, the SDA and the Aboriginal and Torres Strait Islander Social Justice Commissioner
Disability Discrimination Act 1992
Item 80 amends the heading in Part 4 of the DDA to ‘Functions of Human Rights and Responsibilities Commission’. Currently, that part of the Act is titled ‘Inquiries and Civil Proceedings’ but the Human Rights Legislation Amendment Bill 1998 proposes to amend it to ‘Functions of Human Rights and Equal Opportunity Commission’.
Item 81 provides that the first four functions of the Commission in relation to disability discrimination are:
- promoting an understanding of, acceptance of and compliance with the DDA
- disseminating information on disability discrimination and on the responsibility of persons and organisations to avoid such discrimination
- undertaking research, educat ional and other programs promoting the DDA on behalf of the Commonwealth
- preparing and publishing guidelines concerning avoidance of disability discrimination.
Currently, all these functions are in the DDA except for dissemination of information, although this could be interpreted as covered by the Commission’s current incidental powers.
Racial Discrimination Act 1975
Item 115 amends the heading in Part III of the RDA to ‘Functions of Commission’. Currently the heading is ‘Inquiries and Civil Proceedings’ but the Human Rights Legislation Amendment Bill 1998 proposes to amend it to ‘Race Discrimination Commissioner and functions of Commission’.
Item 118 inserts a new function as new paragraph 20(b) to disseminate information on racial discrimination and on the responsibility of persons and organisations to avoid such discrimination.
All other functions currently listed for the Race Discrimination Commissioner remain, except for the power to inquire into and attempt conciliation of complaints under the RDA, as this function is proposed to be repealed by the Human Rights Legislation Ame ndment Bill 1998.
Sex Discrimination Act 1984
Item 135 amends the title of Part III of the SDA to ‘Functions of Human Rights and Responsibilities Commission’. Currently Part III is entitled ‘Inquiries and Civil Proceedings’. The Human Rights Legislation Amendment Bill 1998 proposes to amend the title to ‘Functions of Human Rights and Equal Opportunity Commission’.
Item 136 rearranges the functions of the Commission so that the first four functions are to:
- promote an understanding and acceptance of, and comp liance with, the SDA
- disseminate information on relevant grounds and on the responsibility of persons and organisations to avoid such discrimination
- undertake research and educational programs on behalf of the Commonwealth for promotion of the SDA
- prepare and publish guidelines for avoiding relevant forms of discrimination under the SDA.
Currently, all these functions are in the SDA except for dissemination of information, although this could be interpreted as covered by the Commission’s current incidental powers.
Aboriginal and Torres Strait Islander Social Justice Commissioner
Item 48 repeals the heading entitled ‘Aboriginal and Torres Strait Islander Social Justice Commissioner’ in HREOCA and replaces it with ‘Functions relating to Aboriginal persons and Torres Strait Islanders.’
Items 50, 51 and 57 repeal the definition and establishment in HREOCA of the Aboriginal and Torres Strait Islander Social Justice Commissioner.
Item 51 also repeals subsection 46B(2) which requires that a person appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner must have ‘significant experience in community life of Aboriginal persons or Torres Strait Islanders.’ This specific requirement of experience in community life of Aboriginal persons or Torres Strait Islanders is not repeated in relation to the Deputy President proposed as responsible for ‘social justice’ issues.
Currently, the HREOCA, the DDA, the RDA and the SDA provide the Commission with the power t o seek a court’s leave to intervene in court proceedings that involve relevant human rights and discrimination issues.
Items 24 and 36 (HREOCA), 83 (DDA), 119 (RDA) and 138 (SDA) propose that any intervention by the Commission in a court hearing involving human rights or discrimination issues must now have leave of the Attorney-General before seeking leave of the court.
Items 25 and 37 (HREOCA), 85 (DDA), 122 (RDA), 140 (SDA) provide that the Attorney-General may have regard to the following matters (although is not limited by these matters) when considering whether leave to seek leave of the court to intervene should be granted:
- whether the Commonwealth has already intervened in the proceedings
- whether, in the Attorney’s view, the proceedings may, to a si gnificant extent, affect the human rights of, or involve issues of discrimination against, persons not parties to the proceedings
- whether, in the Attorney’s view, the proceedings have significant implications for the administration of the Commonwealth disability, race and sex discrimination legislation
- whether, in the Attorney's view, there are special circumstances for the Commission to intervene, such as intervention being in the public interest.
Item 28 redresses an anomaly in the Human Rights Legislation Amendment Bill 1998 and its predecessor the Human Rights Legislation Amendment Bill 1996. The 1998 Bill in general prohibits the President from delegating her or his powers in relation to complaint handling and the referral of discriminatory awards to other bodies. However, it does provide for delegation to the Human Rights Commissioner of the power to handle a complaint made in respect of alleged breaches of internationally recognised human rights and equal opportunity in employment or occupation. Item 28 proposes to repeal this delegation power in line with the general prohibition of delegation proposed in the 1998 Bill. It is unclear why this oversight was not dealt with in the 1998 Bill, given that the anomaly had been already identified in the original 1996 Bill.
Item 29 clarifies that the amendments do not limit the powers of the Commission or the President to delegate powers to a member of the Commission which do not concern inquiries or complaint handling.
Items 33 and 40 relates to the Commission’s ability to conciliate and report on transgressions of human rights, other than those rights which are defined as unlawful discrimination under the DDA, RDA or the SDA. Currently the Commission is empowered to make recommendations to a person concerning a breach of a human right, and those recommendations can include payment of compensation to a person who has suffered loss or damage as a result of an act of practice. These items removes that power, limiting the Commission's role to recommending any action other than the payment of compensation of damages.
The Human Rights Legislation Amendment Bill 1998 provides that specialist Commissioners to seek leave t o appear as amicus curiae (‘friend of the Court’) in Federal Court proceedings which arise following a complaint to the Commission. Items 61-64 seek to amend the proposed provisions of this Bill, generally in relation to substituting all references to Commissioners with references to Deputy Presidents. Item 64 provides that the Deputy Presidents must consult amongst themselves before seeking leave to act as amicus curiae .
Parts 3 and 4 —Amendments concerning the Privacy Act 1998 and the proposed Privacy Amendment (Office of the Privacy Commissioner) Act 1999
These Parts propose a series of amendments to the Privacy Act 1998 and the proposed Privacy Amendment (Office of the Privacy Commissioner) Act 1999 (see discussion in Background).
Items 89-96 in relation to the Privacy Act 1998 concern the proposals to change the name of the Commission.
The proposals in relation to the proposed Privacy Amendment (Office of the Privacy Commissioner) Act 1999 generally relate to ensuring that the staff of the Office of the Privacy Commission will no longer be the staff of the Human Rights and Equal Opportunity Commission, and to consequential amendments to the name of the Human Rights and Equal Opportunity Commission.
The operation of these proposals is technically complex. They will not commence if the proposed Privacy Amendment (Office of the Privacy Commissioner) Act 1999 has already commenced ( clause 2(4) ).
The RDA establishes a Community R elations Council charged with the task of advising the Minister and the Commission concerning observance and implementation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) through promotion of educational programs, research, publication and dissemination of materials, promotion of understanding and tolerance and any other relevant matter related to observance of the Convention.
Item 126 repeals, inter alia , those parts (Part V and parts of Part VI) of the RDA which established the Community Relations Council and the provision of staff for the Council. Items 104, 107, 108 and 111 repeal the RDA’s definition of Chairman, Deputy Chairman and member of the Community Relations Council and the Council.
The Explanatory Memorandum notes that no members have ever been appointed to the Community Relations Council so that it has never in fact come into being. The Explanatory Memorandum states that, pursuant to section 15 of HREOCA, the new Commission will retain the power to ‘work with and consult appropriate persons, governmental organisations and non-governmental organisations’.
Item 145 provides that the Bill does not affect the continuity of the Commission’s existence. This will ensure that legal responsibilities of the current Commission continue under the new structure.
Item 145 also provides that the Bill does not affect the continuity of the President’s appointment.
There is no provision for the continuity of current specialist Commissioners.
The Government has concluded after a detailed review that HREOC as presently structured is inefficient and top-heavy. The changes proposed arguably seek to retain the general thrust of the present anti-discrimination regimen whilst stre amlining the mechanisms for protecting individual rights.
The following Concluding Comments reflect the key issues raised in the Senate Legal and Constitutional Legislation Committee’s inquiry into the Bill. The Government members of the Committee generally supported the Bill, with an important exception in relation to the Commission’s intervention in Court proceedings and the continuity of current Commissioners in the new structure. The Opposition and minor parties have opposed the Bill. Their views are detailed at the end of each discussion.
The Government has provided limited explanation for changing the name of the Human Rights and Equal Opportunity Commission to the Human Rights and Resp onsibilities Commission. In his Second Reading Speech, the Attorney-General links the change of name to the Commission’s new emphasis on educating business and the community as to their responsibilities to respect human rights and avoid discrimination, an emphasis which will ‘be the catalyst for a fundamental cultural change in the Commission.’(23) The Attorney-General has noted that:
making people aware of their responsibilities to protect and promote human rights is as important as protecting those who are subject to discrimination.(24)
The change in name has attracted limited but sceptical comment. Considering the concept of ‘responsibilities’ an Age editorial commented that:
to those familiar with the government ’ s tense relationship with the Commission ... the new emphasis sounds like an attempt to pull the commission ’ s teeth … Education in human rights is important, but the Commission educates chiefly by example - specifically by vigorous prosecution of rights violations. Its pursuit of such violations has often irked the present Government.(25)
Keith Suter, convenor of the Human Rights Committee of the International Law Association, noted that the inclusion of responsibilities is ‘intriguing’ but lacking in substance and that the Attorney-General would ‘ need to be careful that this is not seen as simply a gimmick’.(26) The Opposition was more brusque, stating that the name change was:
no more than a pathetic ruse to cover the fact that the Government had decided not to re-appoint the Disability Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner.(27)
It is notable that this change in name comes at a time when significant media attention has been granted to individuals and groups which characterise certain h uman rights and anti-discrimination measures as ‘special privileges’ or ‘special favours’, particularly measures aimed at ensuring equality for indigenous peoples and women. In this context, it is possible that linking the concept of ‘rights’ with ‘responsibilities’ could unintentionally result in a cultural shift in which those subjected to human rights violations are cast as prone to pursue such rights irresponsibly.
It is possibly also worth noting that the Government offers no link between the change of name and the current project to develop a Universal Declaration on Human Responsibilities by the Inter-Action Council, a non-Government organisation comprised of elder statesmen including Mr Malcolm Fraser, Mr Jimmy Carter, and Mr Lee Kuan Yew.(28) Malcolm Fraser has noted that a key argument advanced by the Council for the development of the Declaration is that:
A world dependent upon rights alone would be an unhappy and discordant one. Rights are something that people demand, that we all too often expect others to provide us … None of this is to suggest that the Universal Declaration of Human Rights … should in any way be diminished. The Inter-Action Council, however, does quite firmly believe that the constant demand for rights without recognising the need for responsibilities at every level will not produce the best result.(29)
On one view, this characterisation of human rights as something which one passively demands fails to capture the experience of many people subjected to human rights violations who not only suffer the indignity of discrimination but must actively pursue a l egal remedy in order to secure their right to equality. Such a characterisation potentially lends itself to the perception that human rights are privileges rather than rights which must be tempered by responsible action on the part of those discriminated against. As this project has attracted international interest, it is foreseeable that the concepts it espouses will inform future understandings of the role of the proposed Human Rights and Responsibilities Commission.
The Senate Inquiry not ed that many submissions raised the above concerns, including HREOC which saw the name change as confusing the Commission’s practice. Whilst acknowledging these concerns the Government members of the Committee stated that the naming of the Commission was a matter for Government and supported the proposal.(30) The Opposition Report considered that the name change was inconsistent with community opinion and accordingly opposed it.(31)
The Attorney-General has argued that the current structure of six specialist commissioners is top heavy and inefficient. By replacing specialist commissioners with three Deputy Presidents with responsibility for particular subject areas, it is argued the efficacy of the Commission will be enhanced by:
- providing for a more streamlined and collegiate structure
- ensuring Commission members have a common responsibility to protect and promote human rights for all Australians whilst maintaining specific expertise
- removing the perception that the Commission seeks only to protect sections of the community for whom a specific Commissioner exists and
- enabling Deputy Presidents to develop expertise in other areas without needing to consider appointing new specialist commissioners as each new area develops.
The Human Rights Commissioner, Mr Chris Sidoti, stated that the amalgam of generalist Deputy Presidents with specific responsibilities is a ‘welcome compromise’ to the initial proposal of simply establishing generalist commissioners.(32) Supporting this p roposal, a Canberra Times editorial noted that ‘discrimination is discrimination … It should not be beyond a commissioner to become expert in more than one field’(33) and Mr Bret Walker of the Law Council of Australia has stated that reform would correct some administrative deficiencies in HREOC.(34) More strongly, a former Minister in the previous Government, the Hon. Gary Johns, remarked that there had been:
incessant competition among the commissioners for the public ear and the public purse … specialist commissioners who go about Balkanising the human rights agenda must be replaced by generalists.(35)
Criticisms can be levied at both the necessity and efficacy of this model in terms of its substantive protection of those groups of Australians whose human rights are most persistently undermined.
First, the proposal reduces only five and not six specific commissioners to three Deputy Presidents, as the Privacy Commissioner is not part of the Deputy President structure. Therefore, only two specific commissioners have been ‘streamlined’. This represents a minimal financial saving and it is unclear how a reduction from five to three will instil a significantly new collegiate approach to discrimination issues.
Second, different forms of discrimination operate in often radically different ways and although it is possible for a Deputy President to come to grips with different forms of discrimination, the depth of understanding developed and the effectiveness of the Deputy President is reliant on the amount of time and resources available. Given the significant budget cuts to HREOC, it might be expected that the level of resources allocated to each Deputy President may significantly impede their substantive appreciation of the forms of discrimination they are charged with ameliorating and hence significantly limit the Government’s goal of sustaining adequate expertise. This difficulty may be compounded if, as suggested above, the Attorney-General places additional responsibilities on a Deputy President rather than appointing a specific Commissioner.
Third, it may be of concern to some that the Attorney-General has emphasised that abolishing specific commissioners will soothe a supposed perception that the Commission only acts in the interests of those groups represented by a specific Commissioner rath er than all Australians. Presumably, the emphasis on ‘all Australians’ is directed at the idea that the Commission can only benefit the entire community if it formalistically adheres to the assumption that all people are equally capable of being subjected to discrimination. From a human rights law perspective, this formalism is fundamentally misplaced. Critics of the Government’s position would argue that the raison d ’ etre for the establishment of the Commission and the development of specific international human rights treaties is the fact that certain social groups, for example women, indigenous peoples, peoples with a disability, are systematically discriminated against in a way other groups are not.
Specific concerns regarding the Disability and Aboriginal and Torres Strait Islander Social Justice Commissioners
The loss of specialist commissioners may not only result in a loss of expertise but may undermine the symbolic importance and visibility that specialist commissioners offer particular forms of disc rimination. This could be a particular concern in relation to the merger of the disability discrimination and human rights commissioners and the race discrimination and Aboriginal and Torres Strait Islander Social Justice commissioners.
It is foreseeable that given both the categories of ‘race’ and ‘human rights’ are more general than the categories of ‘Aboriginal and Torres Strait Islander’ or ‘disability’, the relevant Deputy President for these areas may neither be indigenous nor have a disability. It is notable in this regard that the phrase ‘Aboriginal and Torres Strait Islander’ does not even appear in the specific responsibilities of the relevant Deputy President, despite the fact that the Government stated on several occasions that such a specific title would be granted.(36) As previously noted, item 51 does not reiterate an appropriate version of subsection 46B(2) of HREOCA that requires that a person appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner must have ‘significant experience in community life of Aboriginal persons or Torres Strait Islanders.’
In August 1998, the Committee on the Elimination of Racial Discrimination (which monitors compliance with the Convention on the Elimination of All Forms of Racial Discrimination ) issued an unprecedented early warning and urgent action procedure notice against Australia in relation to several matters, including the changes to the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner. On 19 March 1999, the Committee issued a decision that included the following statement:
the Committee also notes with concern the State Party’s proposed changes to the overall structure of the Commission abolishing the position of the Aboriginal and Torres Strait Islander Social Justice Commission and assigning those functions to a generalist Deputy President. The Committee strongly encourages the State Party to consider all possible effects of such a restructuring, including whether the new Deputy President would have sufficient opportunity to address in an adequate manner the full range of issues regarding indigenous peoples.(37)
The Committee’s views are not binding. The Attorney-General has stated that the Government considers the CERD Committee’s findings unbalan ced and that the Government would not be responding to the Committee’s decision.(38)
The Majority report, whilst recognising the above concerns, stated that the Committee ‘considers that this change represents a justifiable move to improve t he management structure of the commission.’(39) The Opposition(40) and Australian Democrats(41) noted that the replacement of specialist Commissioners was widely criticised in the submissions, and in light of the overwhelming evidence favouring their retention, opposed the proposal.
The Bill provides that the key focus of the Deputy Presidents will be on human rights education and assisting business and the community to comply with human rights standards. When combined with the changes proposed in the Human Rights Legislation Amendment Bill 1998, the Deputy Presidents will have a significantly reduced role as compared to the current Commissioners.
Although the proposed focus on research, education and information dissemination may assist in addressing systemic discrimination matters, it is notable that these powers are not new, but have always been a focus in anti-discrimination legislation. More importantly, the significant budgetary decrease to HREOC will affect the new focus on education. The Attorney-General has stated that the Commission will now ‘have to prioritise the things they investigate’ rather than investigate all complaints of discrimination.(42) However, regardless of such directions, there is a statutory obligation on HREOC to process complaints and HREOC will be required to allocate a sufficient budget to these responsibilities. Accordingly, the pool of money left for Deputy President work on education, research and information dissemination could be small, narrowing the scope and effectiveness of this work.
When considering the compound effect of these important changes on the role of commissioners, an Age editorial stated that they:
amount to a sidelining of the commission by a Government that does not want watchdog agencies to frustrate its agenda. The fact is that commissioners have regularly crossed swords with the government on key areas of policy... It is obvious why the Government might be irked at being constantly reminded of things that it should not do but that is what a body such as the Human Rights and Equal Opportunity Commission is for. ... When ... governments act to trim the commission ' s powers ... it is the quality of Australia ' s democracy that suffers.(43)
The Majority Report noted that the focus on educ ation was consistent with the proposed changes to the role of the Commission in light of the Brandy decision, and that it was therefore appropriate that the Commission have a greater focus on education.(44) The Opposition Report strongly opposed the proposal on the ground that it is a ‘hypocritical sham … to justify [the Government’s] attempts to emasculate an agency.’(45)
The Bill ' s proposals to require the Attorney-General’s permission before the Commission can seek leave of a court to intervene in a matter raises several issues.
Firstly, a key policy which threads through both this Bill and the Human Rights Amendment Bill 1998 is the emphasis on the role of Commissioners/Deputy Presidents as human ri ghts educators. To this end, one of the main proposals in the 1998 Bill was to facilitate the Commissioner’s role in acting as amicus curiae in anti-discrimination matters before the Federal Court. The potential to intervene in a relevant Federal, Family or High Court matter is similar to such an amicus role and enhances the Commission ’ s ability to have a systemic and educative impact on the development of human rights law in Australia. Consequently, it may seem contrary to this policy direction that this Bill is providing a new hurdle for the Commission to clear before it is able to seek leave of the court for such an intervention.
Secondly, in the context of limited resources for Commission’s work, it may also appear curious that the Attorney-General’s resources may be designated to duplicate a basic court process.
Thirdly, the intervention issue potentially raises concerns in relation to conflict of interest and the independence of the Commission. The Commonwealth is often a party in matters in which it would be relevant for HREOC to intervene, or the matter may widen the scope of discrimination law and hence have financial or other resources implications for the Government.
For example, in recent times, HREOC has been granted leave by the High Court, the Federal Court and the Family Court to intervene in the Hindmarsh Island Bridge case(46); the Teoh case(47) (the case concerning whether administrative decision makers were required to take Australia ' s international human rights obligations into consideration when making a decision); and B and B(48) (a Family Court matter in which the Attorney-General appeared and put a contrary view to the submission of HREOC). In each instance, HREOC put a significantly different submission to that of the Commonwealth.
The previous President of HREOC, Sir Ronald Wilson stated that proposals to require the Attorney-General’s permission to seek leave to intervene in a court matter impinged on the watchdog’s ability to speak out on human rights.(49)
The Major ity Report recommended this proposal not be pursued on the grounds that it impinges on an important principle of the independence of the Commission from the Executive and that there was no evidence that the Commission’s power to intervene had been abused.(50) The Opposition and Australian Democrats Reports made similar recommendations.(51)
By way of explanation as to the removal of the Commission’s powers to recommend payment of compe nsation for a particular human rights transgression, the Explanatory Memorandum states that the recommendation to pay compensation of damages cannot be enforced because it relates to acts which are not deemed unlawful. However, this is the case with any recommendation made by the Commission in these circumstances. It is not explained why recommendations for compensation or damages have been targeted for removal.
The Majority Report considered it appropriate that the Commission shed this quasi -judicial function in light of the Brandy decision.(52) The Opposition Report stated that this provision pre-empts debate on the Human Rights Legislation Amendment Bill 1998 in relation to the power of the Commission to make binding determinations affecting Commonwealth Departments and agencies, and hence opposed the proposal.(53)
Although the transitional provisions provide for legal continuity of the President’s appointm ent under the new Human Rights and Responsibilities Commission, no such provision is made for the continuity of the current specialist Commissioners. Therefore those commissioners would legally have to seek reappointment to the new Commission.
The Majority Report was concerned about the perception that the lack of transitional arrangements for all Commissioners breached internationally recognised standards in accordance with the Paris Principles on National Human Rights Institutions.(54) Acco rdingly, the Majority Report recommended that the Bill be amended to ensure all Commissioners were covered by transitional arrangements. The Opposition and the Australian Democrats made similar recommendations.(55)
1. Senate Legal and Constitution al Legislation Committee, Provisions of the Human Rights Legislation Amendment Bill (No. 2) 1998 (as introduced in the 38 th Parliament ) February 1999 (hereafter cited as the ‘Senate Committee Report’).
2. Senate, Debates , vol. 82, 25/9/1979.
3. Senate, Debates , vol. 105, 12/9/1984.
4. (1995) EOC 2 — 662.
5. 1997-1998 Portfolio Budget Statement of the Attorney-General’s Department, p. 116.
6. Attorney-General (Daryl Williams), ‘Upholding Human Rights’, Press release no. 269, 15/5/1997.
9. Human Rights and Equal Opportunity Commission, ‘Human Rights Commission Budget Cuts’, Press release , 16/5/1997.
11. The Age , 12/2/1997.
12. The Sydney Morning Herald , 16/9/1997.
13. Australian Women’s Non-Government Organisations, ‘Don't Shoot the Sex Discrimination Commissioner!!’, Press release , 28/7/1997.
14. The Sydney Morning Herald , 16/9/1997.
16. Committee on the Elimination of Discrimination Against Women, Consideration of Third Periodic Report of Australia , 22/7/1997.
17. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families , Commonwealth, Canberra, 1997.
18. The Australian Financial Review , 31/7/1997.
19. The Australian , 28/7/1997.
20. The Australian Financial Review , 20/9/1997.
21. The Sydney Morning Herald , 20/9/1997.
22. Attorney-General (The Hon. Daryl Williams AM QC MP), ‘Human Rights and Responsibilities Commission’, Press release no. 341, 23/9/1997.
23. House of Representatives, Official Hansard , No. 5, 1998, 8/4/1998.
24. Attorney-General (Daryl Williams), ‘Human Rights and Responsibilities Commission’, Press release no. 404, 8/4/1998.
25. The Age , 29/9/1997.
26. The Age , 29/9/1997.
27. Senator the Hon Nick Bolkus, ‘The New Human Rights and Responsibilities Commission is a Sham’, Press release no. 42/97, 23/9/1997.
28. The Inter-Action Council has produced a draft Declaration which it hopes will be adopted by the United Nations General Assembly to sta nd on equal footing with the Universal Declaration of Human Rights .
29. The Australian , 12/9/1997.
30. Senate Committee Report, op. cit., p. 22.
31. ibid., p. 37.
32. The Age , 24/9/1997.
33. The Canberra Times , 25/9/1997.
34. The Age , 24/9/1997.
35. The Australian , 31/7/1997.
36. Attorney-General (Daryl Williams), ‘Human Rights and Responsibilities Commission’, Press release no. 404, 8/4/1998.
38. Attorney-General (Daryl Williams), ‘United Nations Committee Misunderstands and Misrepresents Australia’, Press release no. 541, 19/3/1999.
39. Senate Committee Report, op. cit., pp. 12-13.
40. ibid., p. 33.
41. ibid., pp. 43-44.
42. The Sydney Morning Herald , 24/9/1997.
43. The Age , 31/7/1997.
44. ibid., pp. 17-18.
45. ibid., pp. 31-32.
46. Kartinyeri v The Commonwealth (1998) 152 ALR 540.
47. Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353.
48. B and B: Family Law Reform Act 1995 (1998) 22 Fam LR 453.
49. The Age , 12/5/1998.
50. Senate Committee Report, op. cit., pp. 5-10.
51. ibid., pp. 32-33.
52. ibid., p. 24-25.
53. ibid., p. 38.
54. ibid., pp. 13-16.
55. ibid., pp. 33-34.
30 March 1999
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