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Australian Multicultural Bill 2018

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2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

AUSTRALIAN MULTICULTURAL BILL 2018

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

                                                                                                     

 

 

 

 

(Circulated by authority of Senator Richard Di Natale)

 

 

 

 

 

 

 

 

 

 

 

 

AUSTRALIAN MULTICULTURAL BILL 2018

 

 

 

OUTLINE

 

This Bill enshrines in legislation the principles of multiculturalism and diversity. Enshrining the principles of multiculturalism in law is consistent with state legislation and ensures multilateral and ongoing support for multiculturalism.

 

The Bill establishes a federal multicultural commission, (to be named the Australian Multicultural Commission), which will provide advice to the Minister on issues pertinent to multicultural communities, acts as a single coordination point for integrated responses to community issues, undertakes wide ranging consultations with various bodies and develops and maintains relationships between community organisations.

 

The Bill also outlines annual reporting requirements for Commonwealth entities.

These reporting requirements include:

•          a summary of actions undertaken by the entity during that period to promote the achievement of Australia’s multicultural policy;

•          the use of interpreting and translating services by the entity during that period;

•          communications in languages other than English made by the entity during that period;

•          the extent to which people from diverse backgrounds were represented during the period on boards and committees established by the entity or for which the entity had responsibility; and

•          the collection of statistical data during the period to enable the development of policies, programs and practices which are sensitive and responsive to the multicultural character of Australia.

 

For the purposes of the bill, a person from a diverse background is defined as either being born overseas or having one or more parents born overseas.

 

 

NOTES ON CLAUSES



PART ONE - PRELIMINARY

Clause 1: Short Title

1.           This clause provides for the bill, when enacted, to be cited as the Australian Multicultural Act 2018

Clause 2: Commencement

2.           This clause provides that the main provisions of the bill commence on either the day after the Act receives the Royal Assent, or the day after the Consolidated Revenue Fund is appropriated to fund the Australian Multicultural Commission, whichever occurs later.

Clause 3: Definitions

3.                   This clause provides for definitions of various terms used in the bill.

Clauses 4 and 5

4.                   These clauses set out the objects of this bill and provide a simplified outline of its provisions.

PART TWO - APPLICATION OF THIS ACT

 

5.                   Part 2 of this bill outlines how it will apply in Australia, including the constitutional basis for the bill. It gives effect to the following human rights instruments:

•                      International Convention on the Elimination of All Forms of Racial Discrimination [1975]

•                      International Covenant on Economic, Social and Cultural Rights [1976]

•                      International Covenant on Civil and Political Rights [1980]

 

6.                   This bill also has the effect it would have if each reference to corporate Commonwealth entities, Commonwealth companies and Commonwealth subsidiaries were limited to the application it would have supported by the corporations power of the Constitution.



7.                   This bill applies throughout Australia, and is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

 

PART THREE - AUSTRALIA’S MULTICULTURAL POLICY

 

8.                   Part 3 of the bill sets out Australia’s multicultural policy and codifies this in law.

 

9.                   The bill outlines that the Australian government:

•                      recognises Australia’s First Nations people and that Australia has been a proudly multicultural country since before British arrival;

•                      recognises that Australians come from diverse cultural backgrounds and that multiculturalism is a fundamental aspect of Australian heritage;

•                      protects the equal treatment of individuals under the law, while respecting the cultural, linguistic and religious diversity of those individuals;

•                      fosters an appreciation of diverse cultures and to advance community harmony in Australia by demonstrating a national commitment to the value of diversity;

•                      encourages and assists the institutions of Australia to be inclusive of our multicultural community;

•                      ensures that all Australians are equally entitled to participate and contribute to the social, cultural, economic and political life of Australia;

•                      ensures that all Australians are able to confidently access government-funded services.

 

PART FOUR - IMPLEMENTATION OF AUSTRALIA’S MULTICULTURAL POLICY

 

10.               Part 4 of the bill sets out how Australia's multicultural policy will be brought into effect.

 

11.               Division 1 of Part 4 of the bill specifies the application of this policy.

 

12.               Clause 11 specifies that Commonwealth entities must recognise, promote and comply with Australia’s multicultural policy.

 

13.               Clause 12 allows the Minister to order how Commonwealth entities or companies are to operationalise Australia’s multicultural policy within their organisation (a multicultural policy application order). Before making such an order the Minister is required to consult with the entity or company.

 

14.               Division 2 outlines the annual reporting requirements on Commonwealth entities in regards to their responsibilities to operationalise the multicultural policy.

 

15.               The bill sets out that entities must: produce annual reports which include:

•          a summary of actions undertaken by the entity during that period to promote the achievement of Australia’s multicultural policy;

•          instances of failures to comply with Australia’s multicultural policy in performing its functions or exercising its duties and powers;

•          instances of when a  multicultural policy application order applied to the entity during the period, and failed to comply with the order;

•          the use of interpreting and translating services by the entity during the period;

•          communications in languages other than English made by the entity;

•          the extent to which people from diverse backgrounds were represented during the period on boards and committees established by the entity or for which the entity was administratively responsible; and

•          the collection of statistical data during the period to enable the development of policies, programs and practices sensitive and responsive to the multicultural character of Australia.

 

16.               For the purposes of this bill, people from diverse backgrounds are defined as either being born overseas themselves, or having one or more parents born overseas.



17.               Clause 14 also provides for a requirement that Commonwealth companies include in their annual report details about multicultural policy application orders that were given to the company in the reporting period.

 



 

PART FIVE - AUSTRALIAN MULTICULTURAL COMMISSION

 

18.               Part 5 of this bill establishes a federal multicultural commission (the Australian Multicultural Commission) and sets out its functions, powers and constitutional limits.

 

Division 1 - Establishment and Functions



19.               Clause 15 establishes the Australian Multicultural Commission. The clause provides that the commission is a listed entity, that the Chair is the accountable authority of the commission, and that the following persons are officials of the commission: the Chair; the other members and the staff of the commission.



20.                    Clause 16 outlines the functions of the commission, which include:

•          to ensure that the objects of this bill are met to the maximum extent that is practicable;

•          to provide a single coordination point for providing integrated responses to the government to issues associated with cultural diversity;

•          to research, report on and advise the Minister on systemic community issues relating to the objectives of the commission;

•          to investigate, report and make recommendations to the Minister on any matter referred to it by the Minister;

•          to advise the Minister on factors inhibiting the development of harmonious community relations and on barriers to the participation of Australia’s diverse communities in the social, cultural, economic and political life of Australia;

•          to advise, and make recommendations to, the Australian Human Rights Commission on matters relating to discrimination and racial vilification, and to refer matters relating to discrimination and racial vilification to that Commission;

•          to undertake systematic and wide-ranging consultation with bodies and people to determine the needs of Australia’s diverse communities and promote the objectives of the Commission;

•          to develop and maintain partnerships between community organisations which provide assistance, support and service delivery for diverse communities;

•          to develop and maintain harmonious community relations between all relevant groups in the context of Australia’s diverse communities;

•          to perform any other function conferred on it by this Act;

•          to do anything incidental to any of the preceding functions.

 

21.               Clause 17 provides that the powers of the commission include:

•          the power to do everything necessary or convenient to be done for, or in connection with, the performance of its functions, and

•          that the Chair may enter into contracts or agreements on behalf of the commission for, or in connection with, carrying out the objectives or performing the functions of the commission.

 

22.               Clauses 18 and 19 specify that the commission must consider both Australia’s multicultural policy and Australia’s international obligations, and further matters referred to it by the Minister, in performing its functions, as well as giving the commission flexibility in its range and working methods.

 

Division 2 - Constitution and operation

23.               Clause 20 outlines the composition and conditions of members of the commission.



24.               Subclause 20(1) specifies that the commission will consist of: a Chair; a Deputy Chair; a member who is a youth representative, being a person who is aged at least 18 years but no more than 24 years at the time of his or her appointment; a member who is a representative of a community organisation; and eight other members.



25.               Subclause 20 (2) specifies that Members are to be appointed by the Governor-General on the recommendation of the Minister.



26.               Subclause 20 (3)  specifies that the Minister must, when recommending a person for appointment, consider the desirability of having people of diverse backgrounds on the Commission, as well as people of different occupational and social backgrounds, including people who normally reside in different parts of Australia.



27.               Subclause 20 (4) specifies that the following persons may not be recommended for appointment as a member: a member of a Parliament of Australia or of a State or Territory; a Councillor; an electorate officer; a Ministerial officer; or a Parliamentary adviser.



28.               Subclause 20 (5) specifies that members of the commission:

•          hold office for a term not exceeding 4 years

•          must be appointed on a apart time basis, unless appointed by the Chair

•          are eligible for re-appointment to a second and third term

•          may be removed from office at any time by the Governor-General on the recommendation of the Minister.

 

29.               Subclause 20 (6) specifies that a member's terms and conditions of holding office is specified in their appointment and may resign  from office by delivering a signed letter of resignation to the Minister.



30.               Subclause  20 (7) specifies that the office of a member of the commission becomes vacant if they fail without giving prior notice to the Chair, to attend 3 consecutive meetings of the commission.

 

Validity of decisions

31.               Clause 21 specifies that even if there is a vacancy in membership of the commission, or there is a defect with regards to the appointment of a member, acts and decisions of the commission are still considered valid.

 



 

Chair of the commission

32.               Clause 22 specifies that the Governor-General, on the recommendation of the Minister, must appoint one of the members of the commission to be the Chair of the commission.



33.               The Chair must act on a full-time basis and may not engage in any other paid employment or carry on a business, profession or trade without the consent of the Minister.

 

Staff of the commission

34.               The staff necessary to assist the commission shall be persons engaged under the Public Service Act 1999.



35.               For the purposes of the Public Service Act 1999 :

•          the Chair and the APS employees assisting the Chair together constitute a Statutory Agency; and

•          the Chair is the head of that Statutory Agency.

 

Deputy Chair of the Commission

36.               The Governor-General, on the recommendation of the Minister, must appoint one of the members of the commission to be the Deputy Chair of the commission.

 

Acting Chair of the Commission

37.               The Minister may appoint a member of the commission to act as the Chair during a vacancy in the office of the Chair, for a period not exceeding 3 months.

 

When the Commission is to meet

 

38.               Clause 26 specifies the conditions of when the commission is to meet. The Chair must ensure that there are at least 6 meetings of the commission each year. The dates of meeting are to be determined by the Chair.

 

Procedures at Meetings

39.               The Chair or, in their absence, the Deputy Chair or, in the absence of both the Chair and Deputy Chair, a member of the commission elected by the members present at the meeting, must preside at a meeting of the commission. Other procedures include:

•          the quorum for a meeting of the commission is half of the members for the time being.

•          a question arising at a meeting of the commission is determined by a majority of the votes of the members present and voting on the question.

•          the person presiding at a meeting has a deliberative vote and, in the event of an equal number of votes on any question, a second or casting vote.

•          the person presiding at a meeting must ensure that the decisions made at the meeting are recorded in writing.

•          the Chair must ensure that a copy of any such decisions are given to the Minister within 14 days after the meeting.

•          subject to this bill, the commission may regulate its own procedure.

 

Division 3—Inquiries

Matters in relation to which the commission may conduct inquiries

40.               Clause 28 of the bill outlines that the commission may conduct inquiries into any of the following:

(a)     whether Commonwealth conduct is contrary to Australia’s multicultural policy;

(b)    the laws that should be made by the Commonwealth Parliament:

(i)      in relation to a matter covered by the objects of this Act; or

(ii)    to better promote Australia’s multicultural policy;

(c)     any action that should be taken by the Commonwealth, or by the Government of a Territory:

(i)      in relation to a matter covered by the objects of this Act; or

(ii)    to better promote Australia’s multicultural policy;

(d)    any other action that should be taken by Australia to better comply with Australia’s multicultural policy.

 

Commission not to inquire into conduct of intelligence agencies

41.               Clause 29 of the bill outlines that the commission must not conduct an inquiry into conduct:

(a)     engaged in by an intelligence agency; or

(b)    that is otherwise related to the activities of an intelligence agency.

 

Main purpose of inquiry is to make recommendations

42.               Clause 30 of the bill outlines that the main purpose of an inquiry is for the commission:

(a)     to consider whether any recommendations should be made in relation to the matter that is the subject of the inquiry; and

(b)    if the commission considers that recommendations should be made—to include those recommendations in a report to the Minister under section 33.

 

Initiating inquiries

43.               Clause 31 of the bill outlines that the commission may initiate inquiries:

(a)     The commission may, on its own initiative, conduct an inquiry into a particular matter covered by section 28 if the commission considers that conducting the inquiry:

(i)      will or may advance the objects of this Act; and

(ii)    is in the public interest.

(b)     The Minister may, in writing, request the commission to conduct an inquiry into a particular matter covered by section 28 if the Minister considers that conducting the inquiry:

(i)      will or may advance the objects of this Act; and

(ii)    is in the public interest. The commission must comply with the request.

(c)     A request under subsection (2) of this clause is not a legislative instrument.

 

Commission’s general discretion as to how to conduct inquiries

44.               Clause 32 of the bill outlines that the commission may conduct an inquiry in any way that the commission considers appropriate.



45.               The commission is not bound by rules of evidence when conducting an inquiry.

 

Commission to report to Minister on inquiry

46.               Clause 33 of the bill outlines that the commission must report on an inquiry:

•          as soon as practicable after completing an inquiry, the commission must give the Minister a written report on the inquiry.

•          without limiting the generality of subsection (1), the report must include any recommendations that the commission considers should be made in relation to the matter that was the subject of the inquiry.

 

Minister to table report on inquiry in Parliament

47.               Clause 34 of the bill outlines that the Minister must table a report on inquiry in Parliament:

•          as soon as practicable after receiving a written report on an inquiry, the Minister must table the report in each House of Parliament.

•          within 60 days of receiving the report, the Minister must publish the report on the internet.

 

PART SIX - MISCELLANEOUS

48.               Part 6 of this bill covers off all miscellaneous sections. These include:

•          the commission may delegate to a member or to 2 or more members any of its powers in relation to an inquiry initiated by the commission.

•          the annual report prepared by the Chair and given to the Minister must include:

•          if the commission has decided, during the period, to conduct an inquiry about a matter—include prescribed particulars about the matter;

•          if the Minister has requested the commission, during the period, to conduct an inquiry about the matter—include prescribed particulars about the matter;

•          The names of the recipients of any grants made by the commission during the period.

 

 



 

 

Statement of Compatibility with Human Rights

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

 

AUSTRALIAN MULTICULTURAL BILL 2018

 

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 bill has the effect of enshrining the principles of multiculturalism and diversity in statute, establishing the Australian Multicultural Commission and outlines annual reporting requirements for Commonwealth entities.

 

Human rights implications

This bill engages human rights. The following human rights are promoted by this bill:

 

Article 1 of the International Covenant on Economic, Social and Cultural Rights states that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Moreover Article 2 states that “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

 

Article 2 of the International Covenant on the Elimination of All Forms of Racial Discrimination states that “States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races”.

 

Article 26 of the International Covenant on Civil and Political Rights states that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

By establishing the Australian Multicultural Commission and outlining the annual reporting requirements of Commonwealth entities, this bill enshrines legislative and institutional protections for the right of multicultural Australians to fully participate in Australian society free from discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Conclusion

This bill promotes various human rights recognised in the international instruments referred to in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Senator Di Natale