Human Rights Legislation Amendment Bill 1996

Submission of the Human Rights And Equal Opportunity Commission

to the 'Senate Legal And Constitutional
Legislation Committee

on the Human Rights Legislation
Amendment Bill 1996

---

1. Introduction

1.1 The majority
of amendments contained in the Human Rights Legislation Amendment Bill
1996 ("the Bill") draw on the work of a Review Committee
established in September 1993 comprising members of the Attorney-General's
Department, the Human Rights and Equal Opportunity Commission ("HREOC")
and the Department of Finance. The purpose of the review was a broad ranging
examination of the role and the various functions of HREOC.

1.2 On 23
February 1995 the High Court found (in Brandy v HREOC (1995) 127
ALR 1) that the statutory mechanism of enforcing HREOC determinations
in complaints of unlawful discrimination was unconstitutional. The determination
of complaints was held to be a judicial function which had to be exercised
by a court. A temporary reversion to the previous scheme of enforcement
became law on 28 June 1995 and the Review Committee was extended to advise
on a new and permanent enforcement scheme.

1.3 The Review
Committee recommended changes, which have been substantially reflected
in the Bill, in the areas of:

(i) the management
structure of HREOC, by creating the position of a full-time President
as Chief Executive Officer with responsibility for staffing, finance
and complaint handling; and

(ii) the making
of enforceable orders on complaints under the Racial Discrimination
Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination
Act 1993, by transfer of the function of determining those complaints
to the Federal Court.

The Bill also takes
the opportunity to standardise complaint procedures across the Sex, Racial
and Disability Discrimination Acts as was also recommended.

2. Present management structure
of HREOC

2.1 Under
the current legislative provisions, corporate management powers are invested
in the collegiate body of HREOC as a Commission like the board of directors
of a company. The Commission is comprised of the President and six Commissioners
for each of the areas of Aboriginal and Torres Strait Islander Social
Justice, Human Rights, Privacy, Race Discrimination, Sex Discrimination
and Disability Discrimination. Each Commissioner is responsible for his
or her own unit within HREOC which provides specialist policy advice and
assistance in carrying out the Commissioner's functions.

2.2 Centralised
functions of HREOC such as complaint handling, legal services, corporate
affairs and public affairs are managed by the Commission through its Executive
Director and budget allocations for these functions are agreed upon by
the Commissioners.

2.3 While
the public service management responsibility for complaint handling rests
with the Executive Director under delegation from the Commission as a
whole, each Commissioner in the areas of Human Rights, Disability, Race
and Sex Discrimination exercises direct legal powers in, and responsibility
for, the day to day handling of complaints under the respective anti-discrimination
and human rights Acts.

2.4 All functions
under the Privacy Act 1988 reside with the Privacy Commissioner who manages
all staff working in the privacy area including those staff handling complaints
under the Privacy Act.

2.5 The Review
Committee considered it desirable that HREOC function as a unified entity
and that in doing so it have the structural capacity to deal corporately
with its diverse internal portfolio structure. It concluded that there
should be a unified managerial authority at the highest level of HREOC,
with responsibility for resource allocation and staff management, and
that the experience and expertise of members of the Commission should
be directed to their statutory roles rather than routine matters of administration.

2.6 In examining
the results of internal reviews of HREOC's complaint handling and considering
then available figures on complaint handling times, the Review Committee
took the view that the lines of accountability in complaint handling (other
than in relation to Privacy Act complaints) could be simplified to enable
more efficient performance and that restructuring and simplification could
be expected to assist with both day to day management and long term strategy.

2.7 The Review
concluded that on balance in assessing all these different considerations
and arguments the most critical factor is that the complaint handling
process should operate efficiently, effectively and in the best interests
of the parties to complaints. To ensure this outcome and to improve current
processes the Review Committee recommended that the responsibility for
complaint handling (other than under the Privacy Act) be combined in one
office-holder. That office-holder should be located at a level where management
could be exercised across all complaint processes and must logically have
the statutory powers related to complaint handling to enable its holder
to manage complaint handling operations.

2.8 The Review
recommended that a separate office be established for the administration
of the Privacy Act and consequently made no recommendations about the
transfer of complaints under the Privacy Act 1988 to the proposed President's
position.

2.9 The Human
Rights Legislation Amendment Bill 1996 creates the office of a full time
President of HREOC vested with management power for the corporate affairs
of the Commission and the statutory power to manage the conciliation and
investigation aspects of the complaint handling process. The determination
aspects of disability, race and sex discrimination complaints will be
transferred to the Federal Court.

2.10 On 23
March 1996 the President of HREOC wrote to the Attorney-General saying

We have undergone
a very long and intensive review of our role, functions and performance.
To this review we, and the officers of your Department, brought all
our concern and care that there continue to be an effective human rights
institution in Australia. In such a serious task, complicated as it
was by the need to address the decision of the High Court in Brandy's
case, it was unsurprising that we did not all agree on every detail.
At the end, however, we were reasonably satisfied that the outcome addressed
the major issue of enforcement of determinations whilst at the same
time offering the prospect of balance and achievable organisational
reform.

2.11 It should
be noted that the former Sex Discrimination Commissioner, Ms Sue Walpole,
did not support the Review's recommendation to vest complaint handling
powers in the new office of President.

2.12 The Bill
specifies that the new office of full-time President shall not be able
to delegate complaint handling powers with respect to Race, Sex and Disability
discrimination to "another member of the Commission" (Clause
53). The Review Committee canvassed the arguments at some length as to
whether Commissioners should continue to have a complaint handling role.
Its general conclusion was that the complaint function should be performed
by a new President and that the Commissioner's new role of amicus curiae
to the Federal Court could give rise to a perception of conflict with
any earlier complaint handling role. The Review Committee clearly left
it open to the President to delegate complaint handling powers to another
member of the Commission.

2.13 The Commission
supports the institution of an executive President and supports the transfer
of complaint handling functions under the Racial, Sex and Disability Discrimination
Acts to the President.

2.14 The Commission
is also of the opinion, for a range of practical reasons, that the President
should be empowered to delegate complaint handling powers in the areas
of race, sex and disability discrimination to members of the Commission
including the Commissioners dealing with race, sex and disability discrimination.
This may also necessitate an amendment to the Bill excluding Commissioners
from appearing as a friend of the court or amicus curiae in any complaint
where they have exercised complaint handling powers under delegation from
the President.

2.15 The procedure
for complaints under the Human Rights and Equal Opportunity Commission
Act 1986 does not provide for enforceable decisions but for a report to
be made to the Minister for tabling in Parliament where a complaint which
has substance cannot be conciliated. The Bill proposes vesting all complaint
handling powers under the Human Rights and Equal Opportunity Commission
Act 1986, including the function of reporting to Parliament through the
Minister, in the President.

2.16 The Commission's
opinion is that reporting to Parliament on unconciliated complaints is
an important public function which should be the responsibility of the
Commission rather than of an individual member. This would require amendment
to Clause 49 of the Bill substituting "President" for "Human
Rights Commissioner" with respect to the functions of the Commission
under paragraphs 11(1)(f)(i) and 31(b)(i) only.

3. Commissioner's role as
"friend" of the Court

3.1 The Bill
gives Commissioners the function of acting as amicus curiae to the Federal
Court in cases where complaints cannot be conciliated and are referred
to the Court for determination. This function is to be exercised where
there are special circumstances which may have an impact beyond the parties
to the complaint. Clause 46PS of the Bill gives the function to the HREOC
Commissioners (called "special-purpose Commissioners") with
responsibility in Aboriginal and Torres Strait Islander Social Justice
and Human Rights, as well as Sex, Race and Disability Discrimination.

3.2 HREOC's
general function to intervene, with the leave of the court, in any proceedings
that involve human rights issues remains as it currently stands and no
amendment to it is proposed in the Bill.

3.3 HREOC
supports this new role for the Commissioners but notes that the Bill makes
no provision for complaint proceedings commenced in the Federal Court
to be notified to a special purpose Commissioner. The Commission is of
the opinion that appropriate amendments should provide that complainants
notify the relevant special-purpose Commissioner of the commencement of
process with the Federal Court as part of the litigation procedure. HREOC
also suggests that Clause 46PS (1) (b) should be amended for consistency
with related subclauses to the effect that the "significant implications
for the administration of the relevant Act" are "in the opinion
of the Commissioner".

4. Enforceable decisions in
complaints of unlawful discrimination

4.1 The High
Court decision in Brandy v HREOC meant that any binding determination
of a complaint must be made by a court.

4.2 The Review
Committee considered which federal court was best placed to administer
the human rights jurisdiction. Options considered included the Industrial
and Family Courts but the majority opinion during public consultation
was that the Federal Court, because of its current breadth of jurisdiction,
was the most appropriate.

4.3 HREOC's
primary concern has always been for access and equity in the administration
of human rights law. This concern was vigorously expressed through the
Review Committee and focussed on the desirability that human rights cases
not be subject to the usual regime regarding costs and that the court
processes be made as accessible as possible.

4.4 The Bill,
however, imposes a costs regime similar to any other jurisdiction of the
Court rather than a general rule that costs not be awarded against parties.
HREOC has been involved in the drafting of the Bill and has recently entered
discussions with Federal Court staff to ensure, as far as possible, that
its procedures provide access and equity for the parties to complaints.

Court fees

4.5 Initially,
HREOC was concerned that the usual court fees and legal costs may disadvantage
parties to complaints. However, after further consideration and discussion
with Federal Court officers the Commission considers that Federal Court
rules may be flexible enough to provide reasonable access. The current
Federal Court Regulations allow the Court to waive filing, setting down
and hearing fees in cases of financial hardship and in certain types of
matters, for example, the Industrial Division of the Court, to waive filing
fees.

4.6 To facilitate
access and equity further in these matters, HREOC has written to the Attorney-General
recommending the following additions to the Federal Court Rules:

(a) that Regulation
2(2) be amended so as to exempt proceedings commenced under the Racial
Discrimination Act 1975 (Cth) ("the RDA"), Sex Discrimination
Act 1984 (Cth) ("the SDA") and the Disability Discrimination
Act 1992 (Cth) ("the DDA") from the payment of the filing
fee; and

(b) that there
be an extension of the Registrar's existing power in Regulation 2(5)
to defer all fees in relation to matters under the RDA, SDA and DDA
on such grounds as the Registrar sees fit (including financial hardship)
and for such time as the Registrar sees fit. Such a provision would
also protect the revenue more than the existing system of waivers and
exemptions. HREOC has been advised by the Federal Court that it is administratively
feasible.

Legal costs of the parties

4.7 The Bill
does not provide for the court to award costs in human rights matters
any differently from any other jurisdiction. HREOC remains concerned that
the prospect of an award of legal costs against a complainant may deter
complainants from bringing their cases to the Court and will inevitably
result in a more formal and less "user friendly" process than
at present. It also notes, however, that a costs regime may have beneficial
effects by encouraging contingency fee arrangements:

• increased opportunity
  for parties to be legally represented from the earliest stages;
• legal fees becoming
  a specific part of an award rather than being taken out of general damages,
  as at present;
• better preparation
  and handling of complex matters;
• protection of
  respondents from unnecessary costs defending trivial matters; and
• control of vexatious
  and improper litigious tactics.

4.8 The transfer
of the determination of human rights complaints to a court could involve
some increase in formality and may result in some people failing to pursue
their complaints. The transfer will also place human rights law under
largely the same regime as other areas of law with the Court retaining
its discretion in the awarding of costs.

4.9 HREOC
has also noted the American experience and the view of the Supreme Court
of the United States that legal costs are an essential feature in any
workable civil rights and discrimination regime. It is now clear in the
United States that a plaintiff prevailing in a human rights case is not
subject to the usual litigation rule that parties bear their own costs
(Larson, "Employment Discrimination", 2nd Edition, 1996 para
97.02). In a case under Title II of the Civil Rights Act of 1964 (US),
where the petitioners sought injunctive relief against racial discrimination
at five dine-in restaurants and a sandwich shop, the Supreme Court said

When the Civil
Rights Act of 1964 was passed, it was evident that enforcement would
prove difficult and that the Nation would have to rely in part upon
private litigation as a means of securing broad compliance with the
law…A Title II suit is thus in private form only. When a plaintiff
brings an action under that Title, he cannot recover damages. If he
obtains an injunction, he does so not for himself alone but also as
a "private attorney general" vindicating a policy that Congress
considered of the highest priority... If plaintiffs were routinely forced
to bear their own attorney's fees, few aggrieved parties would be in
a position to advance the public interest by invoking the injunctive
powers of the federal courts. Congress therefore has enacted the provision
for counsel fees - not simply to penalise litigants who deliberately
advance arguments they know to be untenable but, more broadly, to encourage
individuals injured by racial discrimination to seek judicial relief
under Title II. Newman v Piggie Park Enterprises (1968) 390 US 400,
at pp 401-2

Later decisions of
the United States Supreme Court have confirmed that this rule is established
and applies in all civil rights and anti-discrimination litigation.

4.10 HREOC
is sensitive to the immediate perception that a legal costs regime disadvantages
complainants but also notes countervailing arguments which suggest that
a regime which awards costs may have the result of assisting individuals
to bring complaints of discrimination. Having engaged in consultations
with Federal Court staff, and carefully considered the practical workings
of a costs regime, HREOC does not oppose the amendments in the Bill, provided
that court fees could be waived or postponed and that the procedures adopted
by the Court are as "user friendly" as possible.

4.11 HREOC
also recommends that the Bill limit lawyers to charging party-party costs
to their clients and that it prohibit the charging of solicitor-client
costs in this jurisdiction. There are existing statutory models along
this line. Federal Court Rules (Order 62A) provide that the court may
limit the costs payable in any matter before it. Many discrimination applicants
may be able to invoke Order 62A in appropriate circumstances reducing
perceptions of risking high costs. The Bill should nevertheless address
this issue directly.

5. Standardising procedural
provisions

5.1 In accord
with the Review Committee's work, the Bill places all procedural provisions
for complaint under the RDA, SDA and DDA in the one piece of legislation
and takes the opportunity to regularise the different procedural provisions
that have applied across the three Acts. These differences were largely
the result of different historical development and the single set of procedural
provisions will result in more effective complaint handling.

5.2 HREOC
welcomes the consolidation of complaint procedural provisions into a single
piece of legislation.

6. Referral of discriminatory
awards and determinations

6.1 The Bill
provides for the President to refer discriminatory awards and remuneration
determinations to the relevant Tribunals or Commissions for consideration
(Part IIC of the Bill, Clauses 46PT - 46 PV). The definitions of "discriminatory"
only refer to discrimination under the Sex Discrimination Act.

6.2 It was
the intention of the Review and is the position of the Commission, that
the President should have the power to refer such matters where they appear
to be discriminatory under each of the Sex, Racial and Disability Discrimination
Acts

7. Transitional provisions

7.1 In this
paper, the Commission makes no comment about the transitional arrangements
that will be necessary for this legislation to be implemented as that
legislation is not currently before the committee

8. Conclusions

8.1 The Commission
supports the Bill's creation of a full-time executive President with responsibility
for complaint handling functions under the Racial Sex and Disability Discrimination
Acts.

8.2 The Commission
is also of the opinion that the Bill should allow the President to delegate
complaint handling powers in the areas of race, sex and disability discrimination
to any member of the Commission. This may also require amendment to the
Bill excluding a Commissioner who has exercised complaint handling powers
from being a friend of the Court in the same matter.

8.3 With respect
to complaints under the Human Rights and Equal Opportunity Commission
Act 1986 the Commission believes that the role of inquiring into and
conciliating complaints should lie with the President but that the role
of reporting on unconciliated complaints to the Minister and Parliament
should be a function of the Commission as a whole.

8.4 A The
Commission supports the function of amicus curiae or friend of the court
for "special purpose Commissioners" and recommends that appropriate
amendment to the Bill be made to ensure that complainants who commence
litigation in the Federal Court notify the relevant Commissioner of those
proceedings.

8.5 After
much consideration and consultation with officers of the Federal Court,
the Commission does not oppose the scheme of legal costs contained in
the Bill. The Commission further recommends that legal costs be limited
to those between the parties and that solicitor-client costs be excluded.

8.6 The Commission
welcomes the consolidation of the procedural provisions for complaint
of race, sex and disability discrimination into the one Act.

8.7 The Commission
believes that the power for the President to refer discriminatory awards
or determinations to the relevant tribunal should be extended beyond sex
discrimination to include race and disability discrimination.

Last
updated 27 March 2003.