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Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017

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2016-2017

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

AUSTRALIAN HUMAN RIGHTS COMMISSION AMENDMENT (PRELIMINARY ASSESSMENT PROCESS) BILL 2017

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator Burston)

AUSTRALIAN HUMAN RIGHTS COMMISSION AMENDMENT (PRELIMINARY ASSESSMENT PROCESS) BILL 2017

OUTLINE

The main purpose of this Bill is to improve the procedure for dealing with complaints lodged with the Australian Human Rights Commission under Part IIB of the Australian Human Rights Commission Act 1986 . The Bill adds a requirement that the Commission, on receiving a complaint, must engage in a preliminary assessment of the complaint and the evidence relating to it before proceeding to a full inquiry. It also adds requirements relating to informing respondents about the complaint.

NOTES ON CLAUSES

Clause 1: Short title

1.         Clause 1 provides for the short title of the Act to be the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Act 2017 .

Clause 2: Commencement

2.         This clause provides that the Bill will commence on the day after the Bill receives the Royal Assent.

Clause 3 - Schedules

3.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments

Australian Human Rights Commission Act 1986

4.         The items in this Schedule amend the Australian Human Rights Commission Act   1986 .

Item 1 - At the end of subsection 46PE(3)

5.         Item 1 amends section 46PE, which deals with complaints that are made against the Australian Human Rights Commission itself, or its President or a Commissioner.  Subsection (3) currently provides that, if the President terminates a complaint under subsection (2), he or she must follow the notification requirements under section 46PH (which deals with termination of complaints generally).  However, that section is being amended under items 6 and 7 to require notification of any respondents.  The amendment under Item 1 ensures that the Commission is not required to notify itself if it is a respondent. 

Item 2 - Subsection 46PF(1)

6.         Item 2 replaces the existing provision that requires that President, on receiving a complaint, to inquire into the complaint and conciliate it.

7.         The provisions added by Item 2 set out a sequence of preliminary steps (Subsection 46PF(1), paragraphs (1A) to (1G)) that the President must follow before proceeding to a full inquiry and attempt to conciliate:

·          appoint a committee, consisting of the President and 2 other members of the Commission, to make a preliminary assessment of the complaint;

·          inform the complainant that the inquiry will be subject to a preliminary assessment and invite the complainant to provide information for the purposes of that assessment, within a specified time;

·          consider the complaint and any information received, and:

o    form a view on whether the complaint could be terminated under section 46PH  (this section allows for termination of a complaint at any time on various grounds, including that the President is satisfied that: the alleged unlawful discrimination was not unlawful discrimination; the subject matter has already been adequately dealt with by another agency, or by the provision of some other remedy;  or the complaint was trivial, vexatious, misconceived or lacking in substance), and

o    consider whether any respondent should be removed from the complaint, and if so, make an appropriate recommendation to the complainant that he or she remove the respondent from the complaint;

·          inform any respondent of the allegations against them, inform them that the inquiry will be subject to a preliminary assessment and invite them to provide evidence for the purposes of that assessment, within a specified time;

·          consider the complaint and any evidence received, and:

o    form a view on whether the complaint could be terminated under section 46PH, and 

o    consider whether any respondent should be removed from the complaint, and if so, make an appropriate recommendation to the complainant that he or she remove the respondent from the complaint; and

·          unless the complaint is terminated—proceed to a full inquiry and attempt at conciliation.

Item 3 - Subsection 46PF(5)

8.         Item 3 repeals the existing subsection 46PF(5) and Item 5 relocates it in the Act.

Item 4 - Subsection 46PH(1)

9.         Item 4 inserts words into subsection 46PH(1) that make it clear that termination of a complaint under this section can occur at any time (including before the inquiry into the complaint has begun).

 

Item 5 - Before paragraph 46PH(2)

10.       Following the repeal of subsection 46PF(5) in Item 3; Item 5 inserts two sub-subparagraphs on which the President may terminate a complaint.

Item 6 - Subsection 46PH(2)

11.       Item 6 adds words to subsection 46PH(2) to require the notification of respondents as well as complainants if the President terminates a complaint under this section.

Item 7 - Paragraph 46PO(1)(b)

12.       Item 7 is a consequential amendment to Item 6.  It ensures that, if notices under subsection 46PH(2) are sent to complainants and respondents on different days, the 60 day period for appeals is counted from the day on which notice is sent to the first complainant.

Item 8 - Application of amendments

13.       Item 8 makes it clear that the proposed new process will only apply to complaints lodged after the commencement of the Act.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The main purpose of this Bill is to improve the procedure for dealing with complaints lodged with the Australian Human Rights Commission under Part IIB of the Australian Human Rights Commission Act 1986 These are complaints that allege unlawful discrimination under various provisions of the Age Discrimination Act 2004 , the Disability Discrimination Act 1992 , the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 .

The Australian Human Rights Commission Act 1986 requires the President of the Commission, on receiving notice of a complaint, to inquire into the complaint and attempt conciliation.  The Bill adds a requirement that the President must not proceed to a full inquiry until there has been a preliminary assessment of the complaint and consideration of whether it would be appropriate to use the President’s powers to terminate the complaint at that stage.  The preliminary assessment is made on the basis of information supplied by both the complainant and the respondent.

Human rights implications

The amendments improve the procedure for dealing with complaints about the violation of various human rights, and they are in the interests of both complainants and respondents.  They help ensure that complainants do not waste their time with complaints that have no prospect of success, and that complainants are given the opportunity to amend defective complaints where appropriate.  The amendments help ensure that respondents are properly informed of allegations against them, and that they have the opportunity of providing information that would allow a quick resolution of a complaint.

Conclusion

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 , as it improves the operation of human rights safeguards currently in place.

 

Senator Burston