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Law and Justice Legislation Amendment Bill 1993



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House: Senate

Portfolio: Attorney General

Commencement: The Act, apart from section 22 and Part 6, is to commence on Royal Assent. Section 22 is to be taken to have commenced on 13 January 1993 and Part 6 is to commence on a day fixed by Proclamation or alternatively, 6 months after Royal Assent.

Purpose

To amend:

* The Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 to allow respondents to apply for review of a determination of the Human Rights and Equal Opportunity Commission outside the 28 day review period, with the leave of the Federal Court.

* The Privacy Act 1988 to:

(a) introduce a new procedure for making representative complaints under the Act;

(b) provide for the registration and enforcement of determinations by the Privacy Commissioner in the Federal Court;

(c) provide for enforcement of determinations involving Commonwealth agencies; and

(d) allow Departments and Ministers to access certain information under the credit reporting provisions.

* The Sexual Discrimination Act 1984 to amend the commencement date for provisions relating to non discriminatory superannuation funds; and

* The High Court of Australia Act 1979 to combine the positions of Clerk of Courts and Registrar into the position of Chief Executive Officer and Principal Registrar.

Background

As there is no central theme to this Bill, the Background of each major amendment is discussed below.

Main Provisions

Amendments of the Disability Discrimination Act 1992

The Disability Discrimination Act (DDA) was introduced in 1992. The legislation partially fulfils Australia's international obligations under a number of United Nations instruments including the International Labour Organisation Convention on Discrimination in Respect of Employment and Occupation. 1

The objects of the Act include to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: work, accommodation, education, access to premises, clubs and

sport; the provision of goods, facilities, services and land; existing laws; and the administration of Commonwealth laws and programs.

Enforcement of Determinations of the Human Rights and Equal Opportunity Commission.

Complaints made pursuant to the DDA which cannot be resolved by conciliation are referred to the Human Rights and Equal Opportunity Commission (the Commission). The Commission must then hold an inquiry into the complaint.

As a result of the inquiry, the Commission may either dismiss the complaint, or find it substantiated, and make any one or more of the following determinations:

* a declaration that the conduct complained of was unlawful and should not be continued or repeated;

* a declaration that damages should be awarded;

* a declaration relating to various forms of redress for loss or damage suffered by the complainant; or

* a decision that no further action be taken (section 103).

The current procedure for the enforcement of the Commission's determination under the DDA is as follows:

(a) Where the Commission has made a determination under section 103, the Commission must "As soon as practicable after the determination is made,.... lodge the determination at the Registry of the Federal Court (section 104A(2));

(b) Upon lodgement of the determination, the Federal Court Registrar must register the determination (section 104(3)) and the determination has effect as if it were an order made by the Federal Court (section 104B(1));

(c) Within 7 days after the determination is registered, the Commission 'must give written notice of the registration to the complainant and respondent to the determination'. The notice 'must specify the date of registration and must include a copy of the determination' (section 104(4));

(d) Following registration there is a review period which runs for 28 days or, if a respondent to the determination applies to the Federal Court for review of the determination, until the proceedings to review the determination are completed or terminated (section 104B(6));

(e) The determination is not enforceable during the review period, and the respondents failure to 'comply with a positive requirement of the determination' during the review period does not constitute a contravention of the determination (section 104B(3)(4));

(f) Within 28 days after the registration of the determination, a respondent 'may apply to the Federal Court for review of the determination (section 104B(5));

(g) In a proceeding in the Federal Court for the review of the determination, the Court is empowered to 'review all issues of fact and law, but the party cannot adduce new evidence without leave of the Court (section 104C(4));

Some doubt has been raised as to the constitutional validity of this procedure because it effectively allows the Commission to exercise the judicial power of the Commonwealth. This would be a breach of the doctrine of separation of powers, which requires that judicial power be only exercised by a court.

Prior to amendments made by the Sex Discrimination and Other Legislation Amendment Act 1992, the legislation provided that the Commission's determinations were not binding and enforceable and that in order to enforce them a separate action must be brought in the Federal Court. The Commission's determinations, although judicial in nature, had been held not to be an exercise of judicial power, because an essential element of judicial power is that it determines controversies in a way that is binding on the parties. By providing that the Commission's determinations are to have the same effect as a Federal Court order, once they are registered, the 1992 legislation has effectively allowed the Commission to make binding judicial orders, and therefore would appear to breach the constitutional separation of powers. This issue has not been addressed in this Bill.

Another problem with the procedure is that there is no provision to extend the time limit of 28 days in which a respondent may apply for review a determination. In assessing the adequacy of the time limit, it must be noted that in effect, the time limit is in fact only 21 days. This is because the Commission is required to give written notice of the registration of the determination to the parties within 7 days after registration but the 28 day review period runs from the date of registration.

In fact, there is no provision for extending the period of review even for a party who did not receive notice of registration of the determination. Accordingly, a party may be bound by a determination of the Commission without ever having been given the opportunity to challenge the determination.

Clause 4 amends section 104B to allow respondents to apply for review of a determination of the Commission outside the 28 day review period with the leave of the Federal Court. The Court may grant leave only 'in exceptional circumstances' (sub- clause 4(7)).

If the Court grants leave, it may then order that action to enforce the order before the proceeding on the review is completed is prohibited, and that any failure to comply with the positive requirements of the Commissions determination during that period is not a contravention of the determination (sub- clause 4(8)).

Clause 5 amends section 106 of the DDA to allow persons seeking leave of the Court for review of the determination of the Commission to apply to the Attorney- General for the provision of legal or financial assistance in respect of the proceedings.

Amendments of the Privacy Act 1988

The Privacy Act 1988 is based in part on the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data and the International Covenant on Civil and Political Rights.

The Privacy Act has three main areas of operation:

* Information Privacy Principles - to protect personal information which is collected by Federal Government departments or agencies;

* Tax File Numbers - to ensure that tax file numbers are collected and used only for tax related or assistance agency purposes; and

* Consumer Credit Reporting - privacy protection for consumer credit information that can be collected and the use and disclosure of this information.

During 1991/1992, 220 complaints were received by the Privacy Commissioner in relation to breaches of Privacy. Of the 220 complaints, 163 complaints concerned alleged breaches of the Information Privacy Principals, and 9 related to allegations of breaches of the tax file guidelines and two related to the spent conviction scheme. The credit reporting provisions, which came into full effect on 25 February 1992, were the subject of 50 complaints. 2

Representative Complaints.

The Sex Discrimination and other Legislation Amendment Act 1992 introduced a new procedure for the making of and dealing with representative complaints under the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. Clauses 10 - 13 introduce the same procedure into the Privacy Act.

Clause 7inserts a new definition of representative complaint and class member into the Act.

Representative complaint is defined to mean 'a complaint where the person on whose behalf the complaint was made include persons other than the complainant but does not include a complaint that the Commissioner has determined should no longer be continued as a representative complaint'.

Class member is defined to mean 'any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn" from representative action.

Clause 11 inserts a new section 38 into the Act. This section sets out the conditions that have to be satisfied before a representative complaint may be lodged under section 36 of the Act. The conditions include: that class members have a complaint against the same person, all complaints arise out of the same, similar or related circumstances and that all complaints give rise to a substantial common issue of law or fact.

Proposed sub- section 38(3) provides that a representative action may be lodged without the consent of a class member, that is, the system of representative actions proposed by the Bill is an opt out system. The two types of representative actions, opt in and opt out, were examined by the Australian Law Reform Commission (ALRC)in it's report on Grouped Proceedings in the Federal Court. 3

The ALRC made the following comments:

Procedures of the opt in kind provide a cost effective means for people to have common issues determined in one proceeding. They assume each person is aware of his or her legal rights and is contemplating proceedings against the respondent. They also assume that the persons affected are known to one another or that they can be easily identified and that they may see an advantage in agreeing that one of their number should commence a proceeding on behalf of all. They assume in other words, that each person has a choice whether to join in a grouped proceeding or to take separate proceedings 4

Class actions which do not require consent enable legal remedies to be sought on behalf of members of a group who are unable, because of cost or other barriers, to bring individual proceedings. Such a scheme recognises that many of those persons may be unaware that they have a cause of action and that the members of the group may not be known to one another or readily identifiable though their identities may be within the knowledge of the respondent. Where damages are individually non- recoverable, the ability to commence proceedings on behalf the members of the group without first identifying them and seeking their consent is a significant factor in ensuring that they have access to a legal remedy. 5

The ALRC ultimately concluded that:

To commence proceedings without the consent of those affected is not necessarily a limitation on the claimant's freedom of choice. There is no difference in principal between exercising freedom of choice about whether to commence a proceeding and exercising freedom of choice about whether to continue one. The circumstances covered by the Commission's recommendations include cases where persons are ignorant of their legal rights or precluded from taking remedial action by cost or other barriers. A fair balance will be struck between the interests of group members and respondents if proceedings can be commenced without the consent of group members as long as notice is given to group members and they have the opportunity to withdraw from the proceedings or litigate individually. The respondent's ultimate liability should not be extended beyond those group members who can be identified and prove their claims. 6

Clause 11 also introduces a proposed section 38A into the Act. This section provides that the Commissioner has the power to determine that the complaint should not continue as a representative complaint. The Commissioner may determine this on application by the respondent or, of its own volition. The Commissioner may determine this, only if it is in the interests of justice to do so for reasons including:

- the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;or

- the representative complaint was not brought in good faith.

Proposed sub section 38B(1) provides that a class member may apply to the Commissioner to replace the representative complainant with another class member and, the Commissioner may replace the complainant, where it appears that the complainant is not able to adequately represent the interests of the class members (clause 11).

Proposed sub section 38B(2) provides that a class member may withdraw from a representative complaint at any time before the Commissioner starts the inquiry into the complaint (clause 11).

The Commissioner is also given power to make determinations providing for the payment of damages including damages for physical injury to the complainants, feelings or humiliation suffered by the complainant, and give directions as to the manner in which the class members are to establish their entitlement to damages (clause 12).

Enforcement of determinations of the Privacy Commissioner.

The amendments proposed by clause 14 of this Bill to the Privacy Act relating to registration of determinations in the Federal Court are similar in effect to those proposed by this Bill to the Disability Discrimination Act 1992.

Clause 16 provides that this new method of enforcing determination will not apply to determinations made before the commencement of the amendments or in relation to representative complaints lodged before the commencement of the amendments.

Determinations involving Commonwealth agencies.

Clause 14 introduces a new Division 4 into Part V of the Act. This division deals with review and enforcement of determinations involving Commonwealth agencies. Proposed section 58 provides that where a Commonwealth agency is a respondent to the Commissioners determination under section 52 of the Act, the agency must not repeat or continue conduct that is an interference with the privacy of an individual or; perform an act or course of conduct to redress any loss or damage suffered by the complainant.

Where a principal executive of a Commonwealth agency is the respondent to a determination, proposed section 59 provides that the principal executive is take all steps that are reasonably within his or her power to ensure the terms of the determination are brought to the notice of all members, officers and employees of the agency who may engage in conduct to which the determination relates.

Where a determination provides that the respondent should pay damages to the complainant, the complainant will be entitled to be paid the amount specified in the declaration. In the case of a Commonwealth agency that has the capacity to sue and be sued, damages will be recoverable as a debt due by the agency. In any other case , damages will be recoverable as a debt due by the Commonwealth (proposed section 60).

Proposed section 61 provides the method by which a determination in relation to a Commonwealth agency may be reviewed. Proposed section 62 deals with enforcement.

The amended provisions will apply to determinations made after the commencement of the amendments (clause 16).

Credit reporting.

Part IIIA of the Privacy Act concerning credit reporting was issued in September 1991 following consultation with the credit industry and consumer representatives. 7

The Act permits a credit provider to disclose personal information about an individual's credit arrangements to an authority whose functions include giving assistance to schemes which facilitate the giving of mortgage credits to individuals. The agencies use this information for the purpose of determining the extent of assistance to be given.

Clause 9 amends section 18N of the Act to allow this information to be passed on to a State or Territory Department or Minister, in addition to the agency.

Amendments of the Racial Discrimination Act 1975.

The Racial Discrimination Act 1975 (RDA) was passed to give force to Australia's obligations under the International Convention on the Elimination of all Forms of Racial Discrimination.

The Acts major objectives are:

* to promote the equality before the law of all persons regardless of their race, colour or national or ethnic origin; and

* to make discrimination against people on the basis of their race, colour or national or ethnic origin unlawful.

In 1991- 92, the Commission received 336 complaints relating to racial discrimination, this was slightly less than the previous year when 352 complaints were received.

While employment related complaints constituted the highest percentage (53.3%) of matters dealt with under the Act, there were also a significant number of complaints (115) relating to the provision of goods and services, which represents 34.2% of race complaints overall.

Complaints from Aboriginals and Torres Strait Island people represent 32.4% of the total number of complaints received under the Act. People of non- English speaking backgrounds lodged 38.7% of complaints. 8

Enforcement of determinations of the Human Rights and Equal Opportunity Commission.

The amendments proposed by clause 18 of this Bill to the RDA relating to registration of determinations of the Commission in the Federal Court are similar in effect to those proposed by this Bill to the Disability Discrimination Act.

Amendments of the Sex Discrimination Act 1984

The Sex Discrimination Act (SDA) gives effect to Australia's obligations under the Convention on the Elimination of All Forms of Discrimination against women.

The major objectives of the Act are:

* to promote equality between men and women;

* to eliminate discrimination on the basis of sex, marital status or pregnancy; and

* to eliminate sexual harassment at work and in educational institutions.

in 1991/1992, 800 complaints were received by the Commission. A similar number of complaints was received in the previous year.

The largest proportion of the 800 complaints received involved complaints of sexual harassment in employment (366 or 45.8%). Complaints of sexual harassment include those lodged on the grounds of sexual harassment or sex and sexual harassment together. Complaints on the ground of sex constituted the next largest category, with 268 or 33.5% of complaints. Complaints on the ground of pregnancy represented 12.6% of all complaints lodged under the Act.

The majority of complaints (714 or 89.3%) were in the area of employment. Access to goods, services, places and facilities represented 5.1% of all complaints.

The majority of complaints under the Act were lodged by women, however, 63 complaints were received from men. 9

Enforcement of determinations by the Human Rights and Equal Opportunity Commission.

The amendments proposed by clause 25 of this Bill to the SDA relating to registration of determinations by the Commissioner in the Federal Court are similar in effect to those proposed by this Bill to the Disability Discrimination Act 1992.

Non Discriminatory Superannuation Schemes.

Prior to amendments which were to come into effect on 25 June 1993, the Sex Discrimination Act 1984 contained a very broad exception relating to superannuation. That exception was to the effect that it was not unlawful to discriminate against a person on the grounds of sex or marital status in the terms or conditions appertaining to a superannuation scheme.

As from 25 June 1993, discrimination in relation to a superannuation fund was only to be lawful where it is on the ground of sex or marital status and:

* the discrimination is based on reliable actuarial or statistical data and is reasonable having regard to that data and any other relevant factors;

* the discrimination is against a member who has no spouse (legal or de facto) or no child and occurs because:

- the fund provides no death or disability benefits to the member or someone other than the member (ie dependants);or

- the fund provides less generous death or disability benefits to the member or someone other than the member (ie dependants);

* the discrimination is only indirect and relates to the vesting of contributions, the preservation of benefits or the portability of benefits; or

* the discrimination occurs because the fund provides more generous benefits to a person who is a member of the fund at the time the new provisions commenced or was a member of the fund at some time previous to that.

The last of the four exceptions is designed to protect the expectations of existing and past members of funds which may be discriminatory. It will allow such funds to continue to operate as discriminatory funds. However, the funds can only discriminate against or in favour of (i) persons who were members of the fund at the time these sections commenced, or at some time previous to that; or (ii) dependants of such members. Where a person was a member of the fund at the time the new provisions commence, that person must have be given an option to obtain non- discriminatory benefits and must have rejected that option. However, where a fund feels that it is not possible to provide non discriminatory benefits to those members, the funds may apply to the Commission for an exemption from the requirement to grant the option. 10

Clause 24 provides that, instead of the provisions in relation to non discriminatory superannuation policies commencing on 25 June 1993, they are to commence on 1 July 1994. This is to allow superannuation funds sufficient time to develop options to allow existing members to transfer to non- discriminatory schemes. 11

Amendments of the High Court of Australia Act 1979

Clause 28 of the Bill amends the High Court of Australia Act 1979to amalgamate the existing offices and responsibilities of the Clerk of the Court and the Registrar into one office which is to be called the 'Chief Executive and Principal Registrar'. Clauses 29- 39 make minor amendments to the Act and the Commonwealth Electoral Act 1918 as a consequence of this change.

Endnotes

1. Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Limited, 2- 300

2. Human Rights and Equal Opportunity Commission Annual Report 1991- 1992, 104.

3. Australian Law Reform Commission Report No. 46, Grouped Proceedings in the Federal Court, 1988

4. ibid p.48

5. ibid p.49

6. ibid p.55

7. Privacy Commissioner, Credit Reporting, Code of Conduct and Explanatory notes,September 1991, p.i

8. Human Rights and Equal Opportunity Commission Annual Report 1991- 1992, p.65.

9. ibid p.84

10. Australian and New Zealand Equal Opportunity Law and Practice, CCH Australia Limited, 78- 250

11 Second Reading Speech. Law and Justice Amendment Bill 1993.

Bernadette McMahon (Ph. 06 2772477)

Bills Digest Service 23 November 1993

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine

the subsequent official status of the Bill.

Commonwealth of Australia 1993

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Published by the Department of the Parliamentary Library, 1993.