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Human Rights and Equal Opportunity Commission Amendment Bill 2002

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2002

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

House of Representatives

 

 

 

 

 

 

 

 

 

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AMENDMENT Bill 2002

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Hon Daryl Williams AM QC MP
)

 



Human Rights and Equal Opportunity Commission Amendment Bill 2002

Outline

This Bill amends the Human Rights and Equal Opportunity Commission Act 1986 (the Act) to ensure that the Crown in right of the States is bound by the complaints and remedies provisions for unlawful discrimination in Part IIB of the Act.

 

The amendments rectify a drafting oversight that was introduced into the Act by reforms in the Human Rights Legislation Amendment Act (No. 1) 1999 (the Amendment Act) This drafting oversight was identified in a Federal Magistrates Service case late last year called Rainsford v State of Victoria [2001] FMCA 115.  The effect of the Rainsford decision is that the Crown in right of a State is not bound in cases in which it is a respondent to a complaint to the Commission or an application to the Federal Court or the Federal Magistrates Service under the Act alleging unlawful discrimination.

 

As noted above, the drafting oversight identified in Rainsford was introduced into the Act by reforms in the Amendment Act Prior to the commencement of the Amendment Act on 13 April 2000, the legislative structure for the handling of complaints alleging unlawful discrimination was set out in each of the Acts dealing with the specific areas of sex, disability and race discrimination; that is, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 , and the Disability Discrimination Act 1992 respectively. When the complaint handling structure was moved from the three specific Acts into the Act, no provision was made to ensure that the Act bound the States in relation to complaints and applications to courts.  This was an unintended drafting oversight in the Amendment Act.

The amendments contained in the Bill clarify that the States are bound by Part IIB of the Act.

The amendments will simply re-instate the situation that was believed to be the case prior to the Rainsford decision.

Financial Impact

The amendments will have little, if any, impact on government revenue.



Notes on clauses

Clause 1 - Short title

1.                   This is a formal clause which specifies that the Bill, when enacted, will be known as the Human Rights and Equal Opportunity Commission Amendment Act 2002 .

Clause 2 - Commencement

2.                   This clause provides that Schedule 1 of the Bill containing the amendments to be made by the Bill, when enacted, will commence on 13 April 2000 as the drafting oversight that this Bill seeks to address has existed since that time.

Clause 3 - Schedules

3.         This clause provides that the items in the Schedule to the Bill amend the Acts specified in the Schedule.

Schedule 1 - Amendments

Item    1         

Section 6 of the Act provides for the extent to which the Act binds the Crown.  Section 6(1) of the Act provides that the Act binds the Crown in right of the Commonwealth and of Norfolk Island, but except as otherwise expressly provided does not bind the Crown in right of a State.  

Item 1 inserts a new sub-section into the Act that will make it clear that Part IIB of the Act binds the States.

The effect of this item, in conjunction with the commencement provision in clause 2 of the Bill, will mean that the Human Rights and Equal Opportunity Commission and the relevant federal courts will have jurisdiction under the Act over acts or omissions occurring on or since 13 April 2000.   In particular, the effect of this item will be that complaints against a State under the Act that are now before the courts or before the Commission can be further pursued.