Human Rights Legislation Amendment Bill 1996
Legal
Supplementary 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 (Cth)
1. Introduction
1.1 The Human
Rights and Equal Opportunity Commission ("the Commission") has
already presented a written submission to the Senate Legal and Constitutional
Legislation Committee ("the Committee") in respect of the Human
Rights Legislation Amendment Bill 1996 (Cth) ("the Bill") (copy
annexed). The Commission also attended before the Committee on Tuesday
11 March 1997 to provide oral evidence and at that Committee provided
a list of suggested amendments arising from that submission (copy annexed).
From that hearing, and the other written submissions made by other parties,
it became evident that some matters probably required further clarification
or comment. This supplementary written submission is directed towards
those further matters.
1.2 The Commission
is limiting its supplementary written submissions to those matters which
seem to have been of particular interest to the Committee in its deliberations
to date.
2. Fees and charges in the
Federal Court
2.1 The current
Federal Court of Australia Regulations provide for fees payable
in the Court - specifically, filing fees, setting down fees and hearing
fees.
- The Regulations
provide that certain types of matters are exempt
from these fees e.g. matters under the original jurisdiction of the
Bankruptcy Act 1966 (Cth).- The Regulations
also provide that certain types of litigants are exempt
from these fees e.g. individuals in receipt of legal aid or inmates
of prisons.
The Commission recommends
that the types of matters for which exemptions are granted should
be extended to include any proceedings under the Racial Discrimination
Act 1975 (Cth) ("the RDA"), Sex Discrimination Act 1984 (Cth)
("the SDA") or Disability Discrimination Act 1992 (Cth) ("the
DDA") or the Human Rights and Equal Opportunity Commission Act 1986
(Cth) ("the HREOC Act").
2.2 The current
Federal Court of Australia Regulations also provide that fees may
be waived totally by the Registrar if it would cause financial hardship
not to do so. Of course this provision only has effect if the fees are
not exempt for the reasons mentioned in par. 2. 1 above.
If the Commission's
recommendation preferred on the question of Federal Court fees is not
accepted (see par 2.1 above), the Commission recommends that the Registrar's
powers to waive fees should be extended to allow the Registrar an additional
discretion to postpone indefinitely any fees that may be payable.
This would allow fees to be recovered at a later date if. for any proper
reason, the party was able to afford those fees later on e.g. due to the
fact that the Court had awarded costs to that party.
3. Legal costs
3.1 The rationale
for the award of legal costs must be fairness first and foremost. If any
party is forced to undergo the expense, stress and risk of litigation
and is subsequently vindicated in that litigation, then fairness generally
dictates that that party should be at least indemnified as to its legal
expenses.
3.2 This principle
of fairness could and should be displaced if access to the legal system
was unfairly prejudiced by a costs regime. However, the Commission considers
that there is no persuasive evidence that demands the abridgement of the
basic principle of fairness inherent in a costs regime. Indeed, in a time
when publicly funded legal assistance is increasingly difficult to obtain,
a costs regime be the only way many litigants (especially complainants)
can get legal representation because private law firms might undertake
the litigation on a contingency basis.
3.3 The oral
evidence from the Federation of Community Legal Centres (Victoria) before
the Committee is instructive on this point. The Federation advised the
Committee that its member legal centres had great resource difficulties
in doing discrimination cases themselves that it was very difficult to
get private lawyers to do these cases pro bono: see the Senate Proof Committee
Hansard (Legal and Constitutional Affairs Committee), 11 March 1997, at
p.291. If the Federal Court was to be a no costs jurisdiction this very
unsatisfactory situation could be aggravated.
3.4 Properly
advised, complainants will generally have very little to fear from a costs
jurisdiction. Unlike respondents, complainants have the capacity to terminate
the litigation at any time and experience in personal injury jurisdictions
shows that complainants rarely face adverse costs orders. They are in
a strong position to negotiate a reasonable end to the litigation at virtually
any time.
3.5 Complainants
can also further protect themselves from adverse costs orders and unnecessary
costs by the use of
- applications
to fix the maximum costs that can be payable (Order 62A of the Federal
Court Rules) and - offers of compromise
and/or payment into Court (Order 23 of the Federal Court Rules).
3.6 State
and Territory tribunals have a fluid legal costs system which have some
hallmarks of a non-costs jurisdiction. Generally, however, there is little
comparable experience on this question of legal costs for this type of
jurisdiction in Australia. However, the Supreme Court of America has affirmed
the necessity for a costs jurisdiction in the civil rights and discrimination
jurisdictions (see the Commission's original written submissions). The
Supreme Court has justified this position mainly on the ground that otherwise
there will be little or no private enforcement of these laws because generally
complainants have few resources with which to retain lawyers. As a secondary
reason, the Supreme Court has also affirmed the principle that it is fair
that a respondent who successfully defeats a quite unmeritorious complaint
should be indemnified for legal costs. Generally, however, the American
position can be said to favour complainants overall on the question of
legal costs when it comes to the court's exercise of that discretion.
3.7 The real
extent of the risk of an adverse order as to costs needs to be carefully
assessed. In personal injuries litigation it is basically unknown for
plaintiffs to pay any legal costs to defendants unless and until a decision
has been handed down by the actual tribunal and then only if the plaintiff
has lost the litigation. In contrast, costs are paid to plaintiffs at
all stages of proceedings, thus assisting the obtaining of legal representation
by plaintiffs/complainants at all stages of a proceeding. In discrimination
matters, as with personal injury matters, only an extremely small proportion
of matters actually go through to a final hearing. For example, in 1995-96,
231 discrimination matters (including a few matters under the HREOC Act)
were referred for public hearing by the Commission. In that same year
27 decisions were handed down. The complainants were unsuccessful in only
15 of these and therefore at any risk of a costs order. To place these
statistics further in context, in 1995-96 there was just over 2500 complaints
lodged under Commonwealth anti-discrimination legislation.
3.8 The number
of federal discrimination cases which are either legal aid funded or run
by Community Legal Centres is extremely small. The experience of this
Commission has been that legal representation is one of the key essential
ingredients to successfully accessing the legal system in matters of discrimination
law. The general inability of the public or community sector to provide
legal representation in discrimination matters means that resort to the
private sector (through contingency arrangements as to fees) is the only
option that most complainants will have. Contingency arrangements, as
discussed above will be very greatly influenced by whether or not it is
a costs jurisdiction.
4. Whether costs
are payable to representatives other than solicitors or counsel. At the
Senate Committee hearing on 11 March 1997 the question was raised whether
legal costs could be claimed by non-legally qualified persons who are
representing a party to a discrimination case. Section 25G(2) of the RDA
provides:
25G(2) - [ Fee
or Award] A person, other than a solicitor or counsel, is not entitled
to demand or receive any fee or award for representing a party to an
inquiry.
Similar provisions
appear in s.65(2) of the SDA and s.85(3) of the DDA.
Clause 46PN of the
Bill picks up s.25G(1) of the RDA which deals with appearances and representation
at a hearing. It does not go on to provide that non-legally qualified
agents are not entitled to a fee for appearing. This appears to be an
omission, the reason for which is not clear to this Commission.
Generally, the Commission
sees strong reasons of public policy why the previous position in the
discrimination acts should be continued and included in Clause 46PN. The
continuation of such a provision, however, would not preclude the Court
from awarding a non-legally qualified agent any reasonable expenses actually
incurred in representing a complainant before the Court. Such provision
would probably come within the existing rules as to legal costs, but in
any event Clause 46PN could be improved by specifically stating that non-legally
qualified agents of parties are entitled to reasonable expenses actually
incurred in representing a party to a discrimination hearing.
5. Representative Complaints
5.1 At the
Senate Committee hearing on 11 March 1997, the Committee drew attention
to the fact that the Bill allows for a representative complaint to be
made by two or more people whereas the Federal Court Act 1976 (Cth) specifies
that a minimum of seven people are required for a representative action.
5.2 Section
33C(1)(a) of the Federal Court Act provides that a representative proceeding
may be commenced by seven or more persons having claims against the same
person. Section
33C(1) is expressed
to be "subject to this Part". Section 33L of the Federal Court
Act- which is in the same Part as s.33C - provides:
"If, at any
stage of a representative proceeding, it appears likely to the Court
that there are fewer than 7 group members, the Court may, on such conditions
(if any) as it thinks fit;(a) order that
the proceeding continue under this Part: or(b) order that
the proceeding no longer continue under this Part."
The words "Subject
to this Part" - which appear at the beginning of s.33C(1) - leave
some room for suggesting that s.33L would also give the Court a discretion
to waive the seven group members requirement in s.33C when it comes to
the question of how many persons are needed to commence a representative
proceeding. Against this view is the fact that s.33L, by using the words
"at any stage of a representative proceedings", may only operate
f the commencement of a representative proceeding. In view of this slight
ambiguity and the fact that there are already amendments to the Federal
Court Act proposed in the Bill, the Commission recommends that s.33L be
clarified to make it clear that the Court has a discretion to allow representative
proceedings to be commenced, with the leave of the Court and on such conditions
as the Court thinks fit, when there are less than seven group members.
A straightforward and relatively minor amendment to s.33L of the Federal
Court Act would clear up this anomaly.
6. Rules as to evidence
The current provisions
of the RDA, SDA and DDA contain provisions, in common form, freeing the
Commission from strict adherence to the rules of evidence when conducting
public hearings into complaints. Section 25V(1) of the RDA, for example,
provides in part:
"25V(1) For
the purposes of an inquiry, the Commission -(a) is not bound
by the rules of evidence and may inform itself on any matter in such
manner as it thinks fit; and(b) shall conduct
the inquiry with as little formality and technicality, and with as
much expedition, as the requirements of this Act and a proper consideration
of the matters before the Commission permit;..."
The Senate Committee
drew attention to the fact that this provision is not mirrored exactly
in the new Bill and that the new legislation does not specifically state
that the Federal Court is not bound by the rules of evidence in conducting
the hearing into a discrimination matter. Instead, Clause 46P0 of the
Bill provides:
"46P0 Court
not bound by technicalities.In proceedings
under this Division, the Court is not bound by technicalities or legal
forms. This section has ... subject to Chapter III of the Constitution."
The Bill therefore
provides for some easing of the general rules for the conduct of a matter
but not to the same extent as in the previous provisions such as s.25V(1)
of the RDA. This situation is ameliorated, to some extent, by the new
Evidence Act 1995 (Cth) which has significantly relaxed many of the previous,
more technical, rules as to evidence. However, the Bill acknowledges that
Chapter III of the Constitution may limit the extent to which a Court
can proceed without due regard to the laws of evidence and to the technicalities.
Nonetheless, it may still be open to replicate s.25V(1), once again qualifying
it by the operation of Chapter III of the Constitution. The Commission
recommends this.
7. Termination of complaints
7.1 At the
Committee's hearing on 11 March 1997 some questions were raised about
the termination of complaints under the Bill, in particular the way in
which termination of a complaint could occur (thus creating a right to
commence proceedings in the Federal Court). The Commission considers it
important to bring to the Committee's attention that there is no absolute
right in a complainant to have a complaint terminated and thus obtain
access to the Federal Court. Clause 46PE of the Bill provides the grounds
upon which a complaint may be terminated by the President. It is clearly
stated in the initial phrase of Clause 46PE(1) that the decision whether
to terminate a complaint or not is a discretionary one for the President
alone.
7.2 Of more
immediate relevance, however, Clause 46PE(1)(b) of the Bill provides that
the President may terminate a complaint if "the President is satisfied
that all the affected persons want the complaint to be terminated".
Clause 46PE(3) provides that the President does not issue a written "notice"
where a complaint is terminated "at the request of all complainants."
{The Commission also suggests that this section reflect the wording of
Clause 46PE(1)(b) and use the words "affected persons" rather
than "complainants".]
7.3 A written
' notice" of a termination is an essential pre-requisite to access
to the Federal Court - Clause 46PL(1)(b) of the Bill. It is not to be
given by the President when a complaint is terminated under Clause 46PE(1)(b).
Thus it is not possible to gain access to the Federal Court when a complaint
is terminated on the ground that all the affected persons want the complaint
to be terminated.
7.4 There
is no right in any party to obtain direct access to the Federal Court
under the Bill. The position is that access to the Federal Court depends
upon termination of its complaint by and at the discretion of the President.
The Commission supports this position. Of course, the President's exercise
of or failure to execute his or her powers would be subject to various
forms of judicial review.
8. Direct access to the Federal
Court
Mr John Basten QC
in his submission to the Committee proposed that complainants have a right
of direct access to the Federal Court. The Commission considers it important
that all complaints proceed through the Commission in the first instance
because the consistent policy approach of all governments to anti-discrimination
law has been to emphasise conciliation as the preferred method of resolving
disputes. There is enough flexibility, in appropriate cases, for complaints
to be "fast-tracked" through the Commission if the President
is of the view that such a course is expedient and appropriate.
9. Reporting to Parliament
pursuant to the Human Rights and Equal Opportunity Commission Act 1986
(Cth)
9.1 The Commission's
initial submission sets out the essence of the Commission's view on this
issue. This submission simply amplifies that earlier submission.
9.2 The Commission's
initial submission to this Committee said,
"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
an 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)(t)(i) and 31(b)(i) only."
9.3 The Commission
considers it important to clarify its reasons for suggesting and supporting
this alternative regime. The regime for the finalisation of complaints
under the HREOC Act is quite different from that provided under the RDA,
SDA and DDA. Under the three discrimination Acts a complaint that cannot
be conciliated or otherwise finalised by the President will be referred
for hearing and final determination by the Federal Court. By contrast,
under the HREOC Act a complaint that cannot be conciliated or otherwise
finalised by the President can be the subject of a finding that there
has been either a human rights violation or an act of discrimination.
Upon such a finding, a report including any recommendations must be made
to the Attorney-General and must be tabled in Parliament. The process
of finding, recommending and reporting is a quite different, alternative
procedure to the one of hearing and making enforceable orders under the
discrimination Acts. As with the RDA SDA and DDA, the Commission considers
it important with the HREOC Act processes that there be a separation of
the conciliation process and the reporting processes. Conciliation must
be conducted by a person or persons completely removed from the latter
stages of the process (recommendations and reporting).
9.4 Complaints
under the discrimination Acts will leave the President and proceed to
the Federal Court when conciliation attempts have been exhausted. They
will then be finalised by someone neutral, new to the complaint, who has
not been involved in the conciliation process and will not have been affected
by anything that might have occurred in that process. In the regime proposed
in the Bill, when conciliation attempts for complaints under the HREOC
Act have been exhausted they will be determined (reported upon) by the
President who has been intimately involved at all stages of the investigation
and conciliation of the complaints. This is a present difficulty under
the existing legislation (where both functions are performed by the Human
Rights Commissioner) which the amending Bill provides an opportunity to
correct. Instead the present Bill perpetuates the problem.
9.5 To ensure
consistency of treatment and the avoidance of bias in complaints, complaints
under the HREOC Act should leave the President after the exhaustion of
conciliation (and investigation) attempts, just like complaints do under
the discrimination Acts. The function of making findings, recommendations
and reporting to the Attorney-General (and in turn Parliament) is an important
one. At that stage these complaints should be transferred to the Commission.
Accordingly, as was proposed in Item 2 of the Commission's separate page
of suggested amendments previously submitted to the Committee, the following
amendment to the Bill is recommended by the Commission:
"an amendment
to ensure that only the function to inquire into and attempt to conciliate
complaints under the Human Rights and Equal Opportunity Commission Act
1986 (Oh) (HREOCA) is vested in the President while the function of
reporting to the Minister and Parliament is the function of the Commission
as a whole:amend item 49 in
the Schedule to provide that under HREOCA subsection 8(6) the President
would carry out on behalf of the Commission only the functions in subparagraphs
ll(l)(f)(i) and 31(b)(i) of the HREOCA".
10. Clause 46PF(5) of the
Bill
10.1 At the
hearing before the Senate Committee the issue of Clause 46PF(5) was raised.
That Clause provides:
"While the
President retains any document under this section the President must
allow the document to be inspected, at all reasonable times, by any
person who would be entitled to inspect the document if it were not
in the possession of the President" [Emphasis added]
The Commission appreciates
the fact that this Clause has been brought to its attention by the Committee
as it would like to make a brief submission upon it.
10.2 Clause
46PF(5) should be clarified to limit its scope more specifically. Parties
already have access to documents held by the Commission under the normal
processes of the Freedom of Information Act 1982 (Cth). Clause 46PF(5)
obviously provides a different, supplementary regime for accessing documents
which have been obtained by the President pursuant to the power in Clause
46PF. The clause is clearly directed towards ensuring continuing access
to documents despite the President's exercise of power under Clause 46PF
and is unobjectionable on that basis. However, it does not extend to other
documents obtained by the President as part of the ordinary processes
of investigation. To clarify the scope of access permitted under this
Clause the Commission recommends that Clause 46PF(5) should include the
word "legally" as indicated below:
"(5) While
the President retains any document under this section, the President
must allow the document to be inspected, at all reasonable times, by
any person who would be legally entitled to inspect the document if
it were not in the possession of the President. This section does not
allow any person to inspect any document that was not provided to the
President or the Commission by that person."
11. Amendment of the complaint
11.1 This
matter was raised by Mr John Basten QC in his submission to the Senate
Committee. The Commission is, of course, quite concerned that the jurisdiction
should not be attended by undue or unnecessary technicality. There is
already some flexibility in relation to the formation of claims as they
are to proceed in the Federal Court: see, for example, Clause 46PL(3)
of the Bill. That provision essentially requires the proceedings in the
Federal Court to be substantially the same as that alleged in the original
complaint to the Commission.
11.2 Any power
to amend a complaint once it has reached the Federal Court should not
be so wide as to void the overall scheme of the Act which is that complaints
of discrimination must proceed through the Commission (and President)
in the first instance before (see earlier - par.8). The Commission would
be concerned if any amendment of a complaint could raise whole new grounds
of discrimination which had not been broached when the matter was before
the President for investigation and conciliation. For example, it is not
uncommon that an act of discrimination is alleged to have occurred and
then, quite some time later, a related act of victimisation is alleged
to have happened. The practice of the Commission to date in these circumstances
has been that the victimisation allegations are treated as a separate
matter and are dealt with separately on another occasion. In some circumstances,
it may be possible and appropriate for these different but related complaints
to be dealt with jointly in their progression through the Commission.
However, sometimes, especially if the victimisation occurs quite a deal
later, this is not possible or even appropriate. Thus, to use this example.
the Commission would not see it as appropriate that a complaint of discrimination
which had reached the Federal Court could be amended to include much later
acts of victimisation.
11.3 On the
other hand, the Commission sees it as prudent and important that a specific
power to amend the original application lodged in the Federal Court be
included in the Bill in order to clarify the initial application to the
Federal Court, especially in relation to particulars of the alleged discrimination.
Accordingly, the Commission would support a power of amendment being included
in Clause 46PL of the Bill, providing that the proposed amendments to
the complaint "arise out of the same, or substantially the same",
act, omissions or practice that were the subject of the complaint terminated
by the President.
12. Clause 46PE of the Bill
12.1 This
Clause provides for the termination of complaints on various grounds (and
the notification of such terminations by the President. Through this operative
procedure complainants gain the statutory entitlement to commence proceedings
in the Federal Court.
12.2 The current
legislation provides for a straightforward, accessible process of review
of a Commissioner's decision to decline a complaint. This review is carried
out by the President. This process has shown, over time, that there is
a small number of complaints which are declined when further evidence
from the complainant shows that it would have been better for the complaint
to have been continued. In some cases complainants are ill- equipped to
pursue their complaint directly through the Federal Court or to obtain
judicial review from that Court of a decision to "terminate"
the complaint, in order to get the merits of their complaint considered.
The current Presidential review system has proved helpful to reverse certain
decline decisions in a way that is far more "user-friendly"
and accessible than a full Federal Court review (the only other option).
12.3 Bearing
these matters in mind, the Commission submits that some additional flexibility
should be inserted into Clause 46PE to allow inadvertent "errors"
in the termination of complaint to be corrected as appropriate without
the need for a full Federal Court action. Such an amendment to the current
Bill would have the following advantages:
- reduce the workload
of the Federal Court - provide the opportunity
for the President to implement a system of relevant "in house"
administrative review in accordance with "best practice" administrative
law principles - provide complainants
with a more accessible option of administrative review than a full Federal
Court review - allow minor or
inadvertent errors by administrators or complainants to be corrected
within the Commission without the need to resort to Federal Court proceedings.
12.4 These
benefits could be achieved by a simple amendment to the Bill to include
an additional sub-section at the end of Clause 46PE as follows, or similar:
"(5) Nothing
in this Act precludes the President, prior to the commencement of any
proceedings under Division 2 of this Act in respect of a complaint,
from revoking a termination made in respect of that complaint for any
reason the President sees fit."
13. Delegation of complaint-handling
powers by the President
13.1 This
is issue was raised by the Committee in its hearings, particularly in
relation to the issue of the President's capacity to handle the workload
of managing all complaints.
13.2 The Commission
submits that a power allowing the President to delegate his or her complaint-handling
powers should be included in the Bill. Such an amendment to the Bill would
have repercussions on the amicus curiae role. The Commission's position
on this issue is generally made clear in its earlier written submission
- par 2.14 - which is set out below for convenience:
"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."
Last
updated 27 March 2003.