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HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION BILL 1985
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1985
AUSTRALIAN BILL OF RIGHTS BILL 1985:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION AMENDMENT BILL 1985

The Senate, according to Order, resolved itself into Committee for the further consideration of the Bills.

In the Committee

Reconsideration of Bills and Suspension of Standing Orders: Consideration resumed of the motion of the Minister for Resources and Energy (Senator Evans), viz: That the Human Rights and Equal Opportunity Commission Bill 1985, as amended, and the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Bill 1985 be reconsidered and that so much of Standing Orders 202 and 265 be suspended as would prevent amendments being moved to the Human Rights and Equal Opportunity Commission Bill 1985.

Debate ensued.

Question-put and passed.

Explanatory Memoranda: Senator Evans tabled Explanatory Memoranda (2) relating to amendments to be moved on behalf of the Government to the Human Rights and Equal Opportunity Commission Bill 1985 and the Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Bill 1985.

Ordered-That the Human Rights and Equal Opportunity Commission Bill 1985 be first considered.

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION BILL 1985-

Bill, by leave, taken as a whole.

On the motion of Senator Evans the following amendments were, by leave, taken together, debated and agreed to, viz:

Page 2, sub-clause 3 (1), definition of ""appointed member'', lines 9 and 10, leave out the definition, insert the following definition:

"" "appointed member' means the President or the Human Rights Commissioner;''.

Pages 7 and 8, clause 8, line 35 (page 7) to line 34 (page 8), leave out the clause, insert the following clause:

Constitution of Commission

""8. (1) The Commission shall consist of-

(a) a President;

(b) a Human Rights Commissioner;

(c) the Race Discrimination Commissioner; and

(d) the Sex Discrimination Commissioner.

""(2) The President and the Human Rights Commissioner shall be appointed by the Governor-General.

""(3) The President shall be appointed as a part-time member.

""(4) The Human Rights Commissioner shall be a legally qualified person appointed as a full-time member.

""(5) The affairs of the Commission shall, in accordance with the decisions and subject to the directions of the Commission, be administered by the Human Rights Commissioner.

""(6) The functions of the Commission under paragraphs 11 (1) (f) and 31 (1) (b) and the functions of the Commission under paragraphs 11 (1) (p) and 31 (1) (k), to the extent that they relate to the performance of the first-mentioned functions, shall be performed by the Human Rights Commissioner, and a reference in this Act to the Commission or to a member of the Commission shall, in relation to the performance of any of those functions, be read as a reference to the Human Rights Commissioner.

""(7) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of a vacancy in the office of President, Human Rights Commissioner, Race Discrimination Commissioner or Sex Discrimination Commissioner.

""(8) In this section, "legally qualified person' means a person who-

(a) is or has been a Judge of a court created by the Parliament or of a court of a State or a person who has the same designation and status as a Judge of a court created by the Parliament; or

(b) is enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court, of another federal court or of the Supreme Court of a State or Territory.''.

Page 13, sub-clause 17 (1), lines 17 to 19, leave out: ""The Minister may, if the Minister considers it desirable, establish an advisory committee or advisory committees, and an advisory committee so established shall perform such of the following functions as the Minister directs:'', insert: ""The Minister shall establish at least one advisory committee, and may, if the Minister considers it desirable, establish 2 or more advisory committees, to perform such of the following functions as the Minister directs:''.

Pages 13 and 14, clause 19, line 35 (page 13) to line 12 (page 14), leave out the clause, insert the following clause:

Delegation

""19. (1) The Commission may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member of the Commission, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under this Act, other than this power of delegation.

""(2) A member may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the member, delegate to-

(a) a member of the staff of the Commission; or

(b) any other person or body of persons,

approved by the Commission, all or any of the powers exercisable by the member under this Act, other than this power of delegation.

""(3) A power delegated by the Commission under sub-section (1) or by a member under sub-section (2), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission or by the member, as the case may be.

""(4) A delegation under this section by the Commissioner or by a member does not prevent the exercise of a power by the Commission or by the member, as the case may be.

""(5) Subject to any provision in the instrument of delegation, a person to whom a power of the Commission has been delegated under sub-section (1) may, for the purposes of the exercise of that power, exercise any power conferred on a member of the Commission by this Act.

""(6) In sub-section (1), "Power' does not include a power conferred on the Commission by the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984.

""(7) In this section, unless the contrary intention appears, "member' means a member of the Commission.''.

Pages 27 and 28, clause 36, line 6 (page 27) to line 2 (page 28), leave out the clause, insert the following clause:

Acting President and Human Rights Commissioner

""36. (1) If the Human Rights Commissioner is available, the Human Rights Commissioner shall act as President-

(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

(b) during any period when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of President.

""(2) The Minister may appoint a person to act as President-

(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of President,

but-

(c) a person so appointed shall not act as President during any period while the Human Rights Commissioner is available so to act; and

(d) a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

""(3) The Minister may appoint a person to act as Human Rights Commissioner-

(a) during a vacancy in the office of Human Rights Commissioner, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Human Rights Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Human Rights Commissioner,

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

""(4) An appointment of a person under sub-section (2) or (3) may be expressed to have effect only in such circumstances as are specified in the instrument of appointment.

""(5) The Minister may-

(a) determine the terms and conditions of appointment, including remuneration and allowances, of a person acting as President or Human Rights Commissioner pursuant to an appointment under sub-section (2) or (3); and

(b) terminate such an appointment at any time.

""(6) Where a person is acting as President or Human Rights Commissioner in circumstances referred to in paragraph (2) (b) or (3) (b) and the office of President or Human Rights Commissioner, as the case may be, becomes vacant while that person is so acting, then, subject to sub-sections (1) and (4), that person may continue so to act until the Minister otherwise directs, the vacancy is filled or a period of 12 months from the day on which the vacancy is filled or a period of 12 months from the day on which the vacancy occurred expires, whichever first happens.

""(7) The appointment of a person to act as President or Human Rights Commissioner under sub-section (2) or (3) ceases to have effect if the person resigns the appointment by writing signed by the person and delivered to the Minister.

""(8) While a person is acting as President or Human Rights Commissioner, the person may exercise all the powers, and shall perform all the functions, of the President or Human Rights Commissioner, as the case may be.

""(9) At any time when a person who is not a member of the Commission is acting as President or Human Rights Commissioner, the person shall be deemed to be a member of the Commission for the purposes of sections 21, 22, 23, 24 and 26 (including those sections as applied by section 33) and sections 42, 48 and 49.

""(10) The validity of anything done by or in relation to a person purporting to act under sub-section (1) shall not be called in question on the ground that-

(a) the occasion for the person's appointment had not arisen;

(b) there is a defect or irregularity in connection with the person's appointment;

(c) the person's appointment had ceased to have effect; or

(d) the occasion for the person to act has not arisen or had ceased.''.

Page 28, sub-clause 37 (1), line 5, leave out ""5 years'', insert ""7 years''.

Page 29, sub-clause 43 (2), line 36, leave out ""President'', insert ""Human Rights Commissioner''.

Clause 44, sub-clause (3), leave out ""Subject to sub-section (3a),''.

Clause 44, leave out sub-clause (3a).

(See Journals, 11 March 1986, p. 811)

Page 30, sub-clause 44 (5), lines 11 and 12, leave out the sub-clause, insert the following sub-clause:

""(5) If the President is not present at a meeting of the Commission-

(a) if the Human Rights Commissioner is present, the Human Rights Commissioner shall preside at the meeting; or

(b) in any other case, the members present shall elect one of their number to preside at that meeting.''.

Senator Durack, by leave, moved the following amendments together, viz:

No. 1-Pages 3 and 4, sub-clause 3 (1), definition of ""discrimination'', line 42 (page 3) to line 11 (page 4), leave out the definition, insert the following definition:

"" "discrimination' means any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, but does not include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job;''.

No. 2-Page 6, after sub-clause 3 (7), insert the following new sub-clause:

""(7a) for the purposes of the definition of "discrimination' in sub-section (1), the nature of the profession, business or occupation of the person or institution for whom or for which a job is to be performed and all the purposes and objectives that the carrying on of the profession, business or occupation by that person or institution are designed to serve, including religious, moral and political purposes and objectives, shall be taken into account in determining the inherent requirements of a job.''.

No. 3-Page 24, sub-clause 31 (2), lines 7 to 10, leave out the sub-clause.

Debate ensued.

The Chairman of Committees (Senator Hamer) having, on request, divided the Question-

Question-That Amendments Nos 1 and 2 be agreed to-put.

The Committee divided

AYES, 28

Senators- Archer Baume, Michael Bjelke-Petersen Boswell Brownhill Carrick, Sir John Chaney Collard Crichton-Browne Durack Guilfoyle, Dame Margaret Hamer Harradine Kilgariff (Teller) Knowles Lewis MacGibbon Newman Parer Puplick Reid Sheil Short Teague Vanstone Walters Watson Withers

NOES, 34

Senators- Black Childs Coates Coleman Colston Cook Cooney Crowley Devlin Elstob Evans Foreman Georges Gietzelt Giles Grimes Haines Jones McIntosh McKiernan Macklin Maguire Mason Morris Ray Reynolds Richardson Robertson (Teller) Ryan Sanders Sibraa Vigor Walsh Zakharov

Amendments negatived accordingly.

Debate continued on Senator Durack's Amendment No. 3.

Amendment, by leave, withdrawn.

On the motion of Senator Evans the following amendment was debated and agreed to, viz:

Page, 4 sub-clause 3 (1), definition of ""discrimination'', lines 10 and 11, leave out ""but does not include any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job;'', insert ""but does not include any distinction, exclusion or preference:

(c) in respect of a particular job based on the inherent requirements of the job; or

(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed;''.

On the motion of Senator Macklin the following amendments were, by leave, taken together, debated and agreed to, viz:

Page 4, sub-clause 3 (1), definition of ""discrimination'', sub-paragraph (b) (ii), lines 7 to 9, leave out the sub-paragraph, insert the following sub-paragraph:

""(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act,''.

Page 24, sub-clause 31 (2), lines 7 to 10, leave out the sub-clause.

Senator Macklin moved an amendment, viz:

Page 10, paragraph 11 (1) (k), line 11, before ""when requested by the Minister'', insert ""on its own initiative or''.

Debate ensued.

Closure: Senator Evans moved-That the Question be now put.

The Committee divided-

AYES, 34

Senators- Black Childs Coates Coleman Colston Cook Cooney Crowley Devlin Elstob Evans Foreman Georges Gietzelt Giles Grimes Haines Jones McIntosh McKiernan Macklin Maguire Mason Morris Ray Reynolds Richardson Robertson (Teller) Ryan Sanders Sibraa Vigor Walsh Zakharov

NOES, 27

Senators- Archer Baume, Michael Bjelke-Petersen Boswell Brownhill Carrick, Sir John Collard Crichton-Browne Durack Hamer Harradine Jessop Kilgariff Knowles Lewis Messner Newman Parer Puplick Reid (Teller) Sheil Short Teague Vanstone Walters Watson Withers

And so it was resolved in the affirmative.

And it being after 10.30 p.m.: The Chairman of Committees (Senator Hamer), under Sessional Order, put the Question-That he do leave the Chair and report to the Senate.

Question-put and passed.

The President resumed the Chair; and Senator Hamer reported accordingly.