Submission to the Senate Legal and Constitutional Legislation Committee
Legal
SUBMISSION
OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
TO
THE
SENATE LEGAL AND
CONSTITUTIONAL LEGISLATION COMMITTEE ON THE AUSTRALIAN HUMAN RIGHTS COMMISSION
LEGISLATION BILL 2003
You
can also access:
- Summary
of HREOC's Submission on to the Senate Legal and Constitutional Legislation Committee
on the Australian Human Rights Commission Legislation Bill 2003 - Opening
Statement by Prof Alice Tay - delivered by Dr William Jonas on behalf of Prof
Tay at the public hearing held in Sydney on 29 April 2003. - Statement
by Dr William Jonas - delivered at the public hearing held in Sydney on 29 April
2003.
1.
INTRODUCTION
1.1
Wide-ranging amendments to the structure and functions of the Human Rights and
Equal Opportunity Commission ("the Commission") are proposed by the
Australian Human Rights Commission Legislation Bill 2003 (Cth) ("AHRC Bill").
1.2 The
proposed amendments can be divided into four categories:
1.2.1
Amendments that impact on the independence, integrity and effectiveness of the
Commission by fettering the power of the Commission to intervene in cases before
the courts that involve issues that relate to the jurisdiction of the Commission.1.2.2
Amendments that impact on the structure of the Commission and the public's understanding
and perception of the Commission and its members, by:(a)
abolishing the positions of Aboriginal and Torres Strait Islander Social Justice
Commissioner, Disability Discrimination Commissioner, Human Rights Commissioner,
Race Discrimination Commissioner and Sex Discrimination Commissioner;(b)
restructuring of the Commission so that it consists of a President and three Human
Rights Commissioners;(c)
preventing the President from delegating powers in relation to complaints of human
rights breaches or discrimination in employment to the Human Rights Commissioner
(or any other member of the Commission); and(d)
legislatively requiring that the Commission use the "by line" of "Human
Rights - everyone's responsibility".1.2.3
Amendments that remove the power of the Commission to make recommendations for
financial compensation where there is finding of a human rights breach or discrimination
in employment.1.2.4
An amendment to rename the Commission the "Australian Human Rights Commission".
1.3
While the Commission is generally supportive of the proposed change of name, the
Commission opposes all of the above amendments as either being a threat to its
independence or as not assisting or promoting its efficient and effective operation.
2.
FETTERING OF COMMISSION'S INTERVENTION POWER
2.1
The nature of an intervener
2.1.1
Rights of intervention in Australia today may be conferred by statute, or courts
may, in their discretion, grant leave to intervene. [1] The legislation
implemented by the Commission [2] provides that the Commission
may seek leave of the court to intervene in cases raising human rights or discrimination
issues.
2.1.2
Once given leave to intervene, an intervener becomes a party to the case and can
tender evidence and make submissions and appeal the decision. [3]
The intervener's role is to make submissions which will be useful to the court
and different from those of the other parties, [4] and which
the court should have before it to assist it to decide the case before it. For
example, there may be issues that the other parties are not be willing or able
to present in the fuller perspective necessary for the court's determination.
[5] The intervener can also make submissions on a matter of public
interest that would otherwise not have been made.
2.1.3
The intervention function is especially important in the High Court due to its
status as the ultimate national appellate court, especially in constitutional
cases or where large or complex issues of legal principle and legal policy are
at stake. [6] The High Court has noted that interveners from
a "responsible body with large interests" may have perspectives which
help the court to see a problem in a larger context that the parties may overlook
or neglect. [7]
2.1.4
The High Court has commented that interveners will generally perform the useful
task of collecting publicly available legal materials relevant to the case and
presenting them for the court's consideration. [8] This latter
role was emphasised and welcomed by the Full Court of the Family Court in the
case of Kevin and Jennifer, [9] where the Court referred
extensively to the Commission's submissions concerning the human rights issues
relevant to the case [10] and noted, that "we were most
indebted to the Commission for its assistance, which proved very helpful to us
in considering this matter." [11]
2.1.5
The intervener may also be subject to orders for costs. An intervener may be liable
to pay costs at least as to the extra expense incurred by the parties as a result
of the intervention. The basis for an order for costs will be limited to that
which will do justice between all parties. [12]
2.2
The Commission's practice in interventions
2.2.1
The Commission determines which cases it will seek leave to intervene in by reference
to guidelines that it has put in place (see Annexure A).
2.2.2
The Commission has intervened in 35 cases before the courts since the establishment
of the present Commission in 1986. The significant cases that the Commission has
intervened in include:
(a)
Family law cases involving issues of consent to surgical treatment by children
[13] and sterilisation of young women with disabilities; [14](b) Cases involving
child abduction [15] and the relevance of the Convention on
the Rights of the Child in relation to relocation of children; [16](c) The right
of people with a transsexual history to marry; [17](d)
General human rights issues including:(i)
International law and the extent to which administrative decision makers are obliged
to take into account international human rights instruments in making decisions;
[18]
(ii) Inconsistency between State and Federal legislation
in relation to the criminalisation of homosexuality; [19]
(iii)
Freedom of political speech; [20](e)
The interpretation of the race power in section 51(xxvi) of the Commonwealth Constitution;
[21](f)
Native title; [22](g)
Refugee cases dealing with the following issues:(i)
Section 474 ("the privative clause") of the Migration Act 1958
(Cth); [23]
(ii) Rights of asylum seekers aboard the MV
Tampa; [24]
(iii) Guardianship of unaccompanied children;
[25]
(iv) Continued detention pursuant to s 196 of the Migration
Act 1958 (Cth); [26]
(v) Continued detention after serving
a criminal sentence and pending deportation; [27]
(vi) Access
by people in detention to legal representatives; [28]
(vii)
Applications for refugee status as a result of the one child policy of the People's
Republic of China; [29]
(viii) Protection visas under the
Migration Act 1958 (Cth); [30](h)
Coronial inquest into deaths of asylum seekers following the sinking of the Sumber
Lestari (Ashmore Reef Inquest); [31] and(i)
Cases involving sex and marital status discrimination issues including:(i)
Access by unmarried women to IVF treatment; [32]
(ii) Relationship
between sex-based insults and sexual harassment. [33]
2.2.3
The Commission has never had an application to seek leave to intervene rejected
by a court. An application to intervene by the Commission has only been opposed
by a party on two occasions: being the Ashmore Reef Inquest [34]
where the Commonwealth opposed the Commission's intervention and an intervention
before the Australian Industrial Relations Commission where the respondent employee
opposed the Commission's intervention. [35]
2.2.4
Under the Commission's Intervention Guidelines, where the Commonwealth is a party
to the case, the Attorney-General and his Department are informed of the Commission's
intention to intervene at the same time as the court and other parties and are
provided with copies of relevant court documents and submissions at the same time
as the other parties. Where the Commonwealth is not a party, the Attorney-General
and his Department are informed of the Commission's intention to intervene very
shortly, if not immediately, after the court and parties have been notified and
are provided with any other relevant court documents and submissions shortly after
they have been provided to the parties.
The
Commission times its notification to the Attorney-General so as to maintain the
perception of the Commission being an independent agency and to adopt a position
of appropriateness and courtesy to the court and the principal parties to the
case.
2.3 The proposed
amendments to the intervention power
2.3.1
The AHRC Bill [36] provides that the Commission would only be
able to intervene in a case with the Attorney-General's approval. It sets out
the following matters that the Attorney-General could have regard to in deciding
whether to approve the intervention:
(a)
whether the Commonwealth, or a person on behalf of the Commonwealth, has already
intervened in the proceedings;(b)
whether in the Attorney's opinion, the proceedings may affect, to a significant
extent, the human rights of persons who are not parties to the proceedings;(c)
whether in the Attorney's opinion, the proceedings have significant implications
for the administration of the relevant Act and other legislation implemented by
the Commission;(d)
whether in the Attorney's opinion, there are special circumstances such that it
would be in the public interest for the Commission to intervene.
2.3.2
These provisions of the AHRC Bill are identical to provisions of the Human Rights
Legislative Amendment Bill (No.2) (1998) ("HRLAB 2"), which lapsed in
the 38th Parliament. The Senate Legal and Constitutional Legislation Committee
conducted an inquiry at the end of 1998 and early 1999 into HRLAB 2 to which the
Commission made a submission arguing against the fettering of its intervention
power. [37]
2.3.3
The Committee's Report recommended that the need for the Attorney-General's approval
of a Commission intervention be removed. The Commonwealth Government reintroduced
HRLAB 2 in 1999 and moved amendments that removed the need for the Attorney-General's
approval and provided that:
Before
the Commission seeks leave to intervene in proceedings the Commission must
give the Attorney-General written notice of the Commission's intention to do so
together with a statement of why the Commission considers it appropriate to intervene.
The notice must be given at a time when there is still a reasonable period before
the intervention is to take place.
HRLAB
2 was never voted upon and lapsed again.
2.3.4
The provisions of the AHRC Bill that require the Attorney-General's approval
before the Commission may seek leave to intervene are therefore a return to the
earlier version of HRLAB 2.
2.3.5
The provisions of the AHRC Bill in relation to the Commission's intervention power
differ from the provisions of HRLAB 2 in one respect. The AHRC Bill contains an
additional provision that the Attorney-General's approval would not be
required when the President of the Commission is or was immediately before becoming
President, a judge of the High Court or of a court created by the Federal Parliament.
[38] In these circumstances the Commission would be required
to give the Attorney-General written notice of its intention to seek leave to
intervene together with a statement of its reasons for doing so. The notice must
be given at a time when there is still a reasonable period before the Commission
seeks leave to intervene.
2.4
Rationale for amendments
The
Attorney-General stated in his Second Reading Speech that the amendment is to
"prevent duplication and the waste of resources and to ensure that court
submissions accord with the interests of the community as a whole". [39]
2.5 The Commission's
position on the fettering of its intervention power
The
Commission's reasons for opposing the amendment to its intervention power proposed
by the AHRC Bill fall into the following categories:
(a)
The requirement to obtain permission may constrain the ability of the Commission
to raise important human rights and discrimination issues
The
effect of the proposed requirement could be to deny the Commission the opportunity
to argue human rights and discrimination issues before the courts. This is particularly
likely to result in cases where the Commonwealth takes a different view of Australia's
human rights commitments from that taken by the Commission.
The
ability to intervene in cases to raise issues of human rights and discrimination
is an important function for the Commission and contributes significantly to the
promotion and protection of human rights and public education about their relevance
and importance. The proposed amendment threatens to undermine the ability of the
Commission to continue to provide a robust and effective voice in this context.
(b)
The requirement to obtain permission compromises the independence of the Commission
The
requirement would also seriously compromise the Commission's independence. It
is a fundamental principle that an independent national human rights institution
must be unfettered in the performance of all its statutory functions, within the
constraints of legality.
The
Commission considers that the imposition of a requirement for permission would
be contrary to the Principles relating to the Status of National Institutions
[40] (commonly referred to as the "Paris Principles").
The Paris Principles set out international minimum standards for national human
rights institutions. They provide that a national institution vested with competence
to promote and protect human rights shall:
Freely
consider any questions falling within its competence, whether they are submitted
by the Government or taken up by it without referral to a higher authority, on
the proposal of its members or of any petitioner
If
the Commission's intervention function is fettered in the manner suggested in
the AHRC Bill, then it will be most difficult for the Government to hold itself
out as an adherent to the Paris Principles. The Commission is often described
as being a model national human rights institution and it is one upon which other
countries have modelled their human rights institutions.
That
a different regime is seen as necessary where the President is or was a federal
judge supports the Commission's assessment that the amendment compromises its
independence. The Explanatory Memorandum to the AHRC Bill provides that this different
regime "ensures that there are no constitutional issues arising from the
appointment of a federal judge as President". [41] In the
High Court case of Wilson v Minister for Aboriginal and Torres Strait Islander
Affairs, [42] the majority of Court held that the appointment
of a Federal Court judge to prepare a report for a Commonwealth Minister was invalid.
The report was required for the Minister to make a determination in relation to
certain issues. The majority of Court held the procedure provided for resulted
in the position of the Federal Court Judge not being an independent one but rather
"a position equivalent to that of a ministerial adviser" [43]
and that this compromised "public confidence in the integrity of the judiciary
as institution or in the capacity of the individual judge to perform his or her
judicial functions with integrity". [44]
If
the different process that applies when a federal judge is President of the Commission
seeks to avoid the invalidity that existed in Wilson's case, then it follows
that where the President is not a federal judge and the approval of the Attorney-General
is required for an intervention, it could be perceived that the Commission ceases
to be able to exercise the intervention function with integrity in an independent
manner. The relationship becomes one where the Commission is subject to the individual
discretion of the Attorney-General in the performance of one of its important
statutory functions.
Furthermore,
the existence of the different regime where a federal court judge is President
effectively creates two "classes" of President: one that is considered
to be able or trusted to act independently when participating in Commission decisions
as to whether to intervene in cases and one that is considered to not have these
qualities. This perception is insulting to persons appointed to the position of
President who are not federal court judges.
In
the Commission's view, it is inappropriate and would be unacceptable to the public
that the performance of this function should be subject to political control.
It is most particularly inappropriate and unacceptable in cases where the Commission
seeks to put to the court a different view from that presented by the Commonwealth.
(c)
The requirement raises actual or perceived conflict of interest
In
addition to compromising its independence, the amendments also raise real issues
of an actual or perceived conflict of interest given that, at times, the Commonwealth
would be a party to a case in which the Commission wishes to intervene. Of the
35 cases in which the Commission has intervened to date, the Commonwealth has
been a party in 18 [45] and made submissions contrary to those
of the Commission in 16. [46]
It
is inappropriate for the First Law Officer of the Commonwealth to have a "gatekeeper
role", so as to be able to determine who may apply to intervene in cases
in which the Commonwealth is a party.
In
such cases, further, there is a risk that the pre-requisite of the Attorney-General's
permission for an intervention application will create a perception in the minds
of other parties and their representatives that the Commission is not an independent
and objective intervener but rather is aligned with the Commonwealth. Such a perception
would run contrary to the policy requiring interveners to be independent and non-aligned
with the parties, able to add a valuable element to the case that the parties
might not be able to provide. The perception of alignment of the Commission as
intervener with the Commonwealth would be overwhelmingly damaging in cases to
which the Commonwealth itself is a party.
(d)
The amendments pre-empt the authority of the courts
By
permitting the Attorney-General to determine when the Commission may seek leave
to intervene in a cases, the amendments pre-empt the authority of the court to
consider and determine whether it would grant leave to an intervener by preventing
the Commission from approaching the court directly. It is properly a matter for
the court presiding over a case whether an intervener should be granted leave.
The courts are experienced in making such an assessment and are able to do so
in the context of the cases before it, with a knowledge of the issues that are
relevant to the cases and with an appreciation of the issues that will be raised
by all parties.
(e)
The rationale for the amendments is flawed
As
stated above, one of the rationales given by the Attorney-General for imposing
the requirement that his approval be given prior to the Commission seeking leave
to intervene in cases is to "prevent duplication and the waste of resources
and to ensure that court submissions accord with the interests of the community
as a whole". [47]
The
Commission is already bound by s 10A(1)(b) of HREOCA to ensure that its functions
are performed "efficiently and with the greatest possible benefit to the
people of Australia". The concerns of the Attorney are therefore already
a required part of the decision-making of the Commission in the exercise of its
functions, including decisions to intervene in cases raising human rights issues.
The Commission
also frequently seeks the advice of Senior Counsel on the appropriateness and
benefit of its intervention in the particular proceedings before it makes an application
to the court for leave to intervene.
Furthermore,
on the issue of duplication and cost, these are matters that the court considers
and rules upon when it exercises its discretion to grant leave to a party to intervene.
It is clear from numerous statements by the courts that they will not grant leave
to parties seeking to merely duplicate the submissions of parties already before
it. If an intervener does lengthen the hearing of the case and cause the parties
to incur further costs in the process then the court is at liberty to order the
intervener to pay those additional costs.
On
the issue of ensuring that submissions accord with "the interests of the
community as a whole", the Commission notes that all human rights issues
are fundamentally matters of interest to the whole community. However, any intervention
by the Commission must focus upon a particular issue of human rights raised by
the particular facts of the case. The Commission's role as intervener is to assist
the Court by placing before it relevant submissions on human rights and discrimination
law pertinent to the case before it.
The
Commission rejects any suggestion that the Commission's interventions are a wasteful
use of public monies. The cost of the Commission's 18 interventions over the last
three financial years has been a total of approximately $200,000 (approximately
$11,000 each). This amount reflects 0.5% of the Commission's total budget during
that period.
The
Commission is able to conduct its interventions on such a modest budget by virtue
of the fact that many of the Senior Counsel engaged by it provide their services
on either a pro bono or reduced rate basis and are often prepared to appear for
the Commission without the need for Junior Counsel.
The
Commission also notes that if a court was to regard a particular intervention
as being wasteful of the court's resources, they would deny any such application
for leave to intervene. As observed above, the court has not rejected an application
by the Commission to intervene.
3.
COMMISSION STRUCTURE
3.1
Current structure
The
legislation implemented by the Commission provides that the members of the Commission
shall be:
- the President;
- the Aboriginal and Torres Strait Islander Social Justice Commissioner;
- the Disability Discrimination Commissioner;
- the Human Rights Commissioner;
- the Race Discrimination Commissioner; and
- the Sex Discrimination Commissioner.
There
has only been one permanent Disability Discrimination Commissioner, Elizabeth
Hastings, and since her term expired in December 1997, the Human Rights Commissioner
has acted as the Disability Discrimination Commissioner (other than a short period
of time where the Sex Discrimination Commissioner acted in the position). The
term of the last Race Discrimination Commissioner, Zita Antonios, expired in September
1999 and since that time the Aboriginal and Torres Strait Islander Social Justice
Commissioner has acted in the position.
3.2
Proposed restructure
The
AHRC Bill proposes to alter the structure of the Commission, so that it would
consist of:
- a President; and
- three Human Rights Commissioners. [48]
There
is to be no division of portfolio responsibility among the three Human Rights
Commissioners. However, it appears to be envisaged [49] that
the functions associated with the portfolios of the "former Commissioners"
might be delegated to the new Human Rights Commissioners.
The
transitional provisions provide that the continuity of the appointment of the
current Human Rights Commissioner and President is not affected by the amendments
under the Bill. [50] They further provide for the automatic
appointment of the current Commissioners as Human Rights Commissioners (on their
existing tenures and with their existing entitlements). [51]
3.3 Rationale for proposed
restructure
The
rationale proposed for the restructure is that it will:
Take
into account the possibility of new areas of Commission responsibility (such as
age discrimination), the fact that human rights issues increasingly cross over
the portfolio specific boundaries of the existing structure (such as women with
disabilities) and the social and economic environment that faces all levels of
government and business. [52]
3.4
Comparable provisions in HRLAB 2
Somewhat
different amendments were proposed under HRLAB 2, which provided that the Commission
would be reorganised so as to consist of a President and three Deputy Presidents,
each of whom would also have responsibility for one of the following grouped subject
areas:
- social justice and race;
- sex
discrimination and equal opportunity; and - human
rights and disability discrimination.
Those
portfolio areas were to be identified in the title of each office holder.
The
Commission's comments on the proposal may be found in its submission to this Committee
of 10 July 1998. [53]
3.5
Commission's concerns with proposed restructure
The
re-structuring which would be effected by the AHRC Bill is unnecessary to achieve
the government's objectives, unworkable and confusing. The result of its impact
will be to reduce the status of each member as an expert providing leadership
to the nation in his or her areas of functional responsibility. The overall effect
is to downgrade, by generalising, Australia's commitments to the promotion of
human rights and the elimination of discrimination both domestically and internationally
where the portfolios of the current Commissioners reflect key international human
rights obligations.
The
re-structuring effected by the AHRC Bill is problematic for the following reasons:
(a)
Adverse impact on the performance of Commission functions
The
title of each of the Human Rights Commissioners is not to make reference to any
area of speciality or focus. The present specialist positions have a long established
reputation and standing in the community and generate a sense of representation
and responsibility among the relevant members of each Commissioner's public "constituency".
Specialised
office holders are also required given the wide jurisdiction of the Commission.
Furthermore, the proposed generalisation of the functions of the Commissioners
will potentially hinder the coherent functioning of the Commission by blurring
the functional lines of responsibility across the specialised Acts the Commission
implements.
Of
particular concern is that the amendments do not require a Commissioner to be
specifically responsible for Indigenous issues nor reflect the present requirement
in HREOCA that the Aboriginal and Torres Strait Islander Social Justice Commissioner
have significant experience in the community life of Aboriginal persons or Torres
Strait Islanders. [54] The position of Aboriginal and Torres
Strait Islander Social Justice Commissioner has to date been held by an Indigenous
person.
(b)
Public confusion and resentment
The
proposed generalisation of specialist positions that have a long established reputation
and standing in the community will not only generate confusion, but will risk
creating a feeling of resentment in marginalised sections of the community at
having been disenfranchised.
The
current titles of Commissioners enable the public to quickly and easily identify
the key elements of the jurisdiction. This has an educative function, particularly
in an international context.
Furthermore,
the application of the title of a current member of the Commission to three new
positions stands to cause additional confusion amongst members of the public.
As there will also be a position of President of the Australian Human Rights Commission,
positions titled "Human Rights Commissioner" will create confusion about
the difference in the roles of the President and the Human Rights Commissioners
and may undermine the President's role as head of the agency.
(c)
Unnecessary to achieve stated aims
It
appears that the rationale behind the restructure of the Commission and the creation
of generalist Human Rights Commissioners is that it will encourage flexibility,
enhance the ability to deal with topics that are across a number of pieces of
legislation implemented by the Commission and create a wide body of expertise
among the Commissioners. [55]
The
Commission's current structure does not prevent the Commission from dealing with
topics that raise broad or intersecting human rights issues in a flexible and
informed manner. For example, the Commission's public inquiry into Children in
Immigration Detention has touched upon issues relating to children with disabilities
and issues relating to girls and young women in detention. Similarly, the Commission's
2000 report into access to electronic commerce dealt with issues of age and disability
while the Commission's report "Age Matters" in June 2000 focused on
age discrimination.
The
broad approach reflects the fact that it is the duty of the Commission under HREOCA
to ensure that its functions are performed with regard to the indivisibility and
universality of human rights and with particular attention to people and groups
affected by multiple human rights violations or discrimination. [56]
Furthermore,
the making of Commission decisions in relation to many of its functions (such
as interventions, examination of enactments and education) already requires the
present Commissioners to have a breadth of knowledge that extends beyond their
respective portfolios.
4.
OTHER RELEVANT PROVISIONS
4.1
Inquiry powers under ss11(1)(f) and 31(b) of HREOCA
Section
11(1)(f) of HREOCA empowers the Commission to inquire into acts or practices by
or on behalf of the Commonwealth that may be inconsistent with or contrary to
any human rights. Section 31(b) of HREOCA makes the same provision in relation
to acts or practices by an employer that may constitute discrimination in relation
to employment. The powers related to these functions include reporting on any
findings of human rights breach or discrimination to the Attorney-General and
including in the report a recommendation that a specified amount of compensation
be paid to the person who has suffered loss or damage as a result of the act or
practice. [57] The Commission's recommendation is not legally
binding or enforceable.
The
AHRC Bill removes the power of the Commission to recommend financial compensation
in the above situations. The rationale offered for the first amendment is that
recommendations for financial compensation "cannot be pursued in any way".
[58] While that may be so, the reality is that in the reports
issued by the Commission that have recommended financial compensation, respondents
have paid the compensation in 27% of cases. [59] One possible
explanation for compliance with the Commission's recommendation is that, if a
respondent refuses to make such payments, the Commission may refer to that fact
in its report to Parliament [60] and this has the potential
to cause public embarrassment for the respondent. Further, to the extent that
such recommendations are symbolic rather than enforceable, they may nevertheless
be morally persuasive.
It
is the Commission's opinion that removing the ability to recommend financial compensation
for human rights breaches denigrates the pain and suffering that might be experienced
in these circumstances. It is accepted legal practice for monetary awards to be
seen as an appropriate (if often inadequate) form of compensation for such loss
and to deny it to persons who have been found to have suffered a human rights
breach is demeaning and trivialises the loss that may be suffered.
In
relation to complaints of discrimination in employment under HREOCA, it is unfair
that a person who has suffered a loss of wages as well as pain and suffering as
a result of discrimination cannot be the subject of a recommendation for compensation.
This is particularly so given the real and accurate manner in which loss of wages
can be calculated. It is inconsistent that a person could pursue an unfair dismissal
action through the courts and receive an award for compensation but cannot be
the subject of a recommendation for compensation from the body vested with the
power to inquire into the alleged act or practice of discrimination.
Furthermore,
the fact that the recommendation for financial compensation is not enforceable
has not deterred respondents from settling complaints under HREOCA - in particular
complaints of discrimination in employment. A respondent will be less inclined
to settle a complaint if the Commission does not have the power to recommend financial
compensation. Moreover, the cases in which the Commission has made such recommendations
provide a useful guidance as to the amounts which could be sought or offered in
conciliation.
4.2 Delegation
of President's powers
The
AHRC Bill removes the President's ability to delegate her inquiry powers under
section 11(1)(f) and 31(b) of HREOCA in relation to complaints of breaches of
human rights or discrimination in employment to the Human Rights Commissioner.
[61]
It
has consistently been the Commission's position that the President should be empowered
to delegate these powers to any member of the Commission. The President should
be allowed to utilise fully the expertise brought to the Commission by the Commissioners.
The
Commission, therefore, opposes this amendment and recommends that an amendment
be made that would permit the President to delegate her powers under section 11(1)(f)
and 31(b) to any other member of the Commission.
4.3
Complaints Commissioners
The
Attorney would have power to appoint persons as part-time "Complaints Commissioners".
[62] Those persons must be "legally qualified" (defined
to mean they are or have been a judge or are enrolled as a legal practitioner).
The
Commission's President would then be able to delegate to those persons the power
to conduct inquiries into complaints of human breaches and discrimination in employment
under sections 11(1)(f) and 31(b) as well as inquires into complaints of unlawful
sex, race or disability discrimination under section 46PD of HREOCA. [63]
The rationale
for this amendment is that it provides an option for the managing of complaint
handling workloads. [64] This is unnecessary as there is currently
no issue with the President's complaint handling workload nor are there any undue
delays in the processing of complaints. If any assistance is required with the
President's workload then the President has under HREOCA [65]
(and retains under the AHRC Bill) the power to delegate her powers not only to
a member of staff of the Commission but also to a person outside the Commission.
The President can therefore already delegate her inquiry powers to an external
person (such as a retired judge or member of the legal profession) if their expertise
is required or to reduce any workload issues. This current system is working well
and there is no backlog in relation to the processing of complaints and all obligations
under the Commission's Service Charter are being met.
The
Commission is of the view that this amendment does not assist in any way the efficient
operation of the Commission or the exercise of the President's inquiry powers.
Its impact is to detract from the "collegiality" and cohesiveness of
the members of the Commission [66] by introducing a further
layer of appointees into the structure of the Commission. The amendment also challenges
the ability of the President to manage the administrative affairs of the Commission
[67] by appointing persons over whom the President will have
no control in areas that are essential to effective and efficient complaint handling,
such as the meeting of timeframes and deadlines and consistent decision making.
4.4 "Re-focussing"
Each
of the pieces of legislation implemented by the Commission provide a set of functions
to be carried out by the Commission. [68] These functions are
to be re-ordered such that the educational/research functions appear first. [69]
This is said to be designed to "make education and dissemination of information
on human rights the central focus of the new Commission's functions". [70]
In addition,
a number of new functions have been added, including the function of "disseminating
information on the [relevant rights/or grounds of discrimination] and of the responsibility
of persons and organisations in Australia to [respect those rights/avoid such
discrimination]". [71]
The
Commission does not oppose the "re-focussing" as such but rather is
of the view that such re-focussing is unnecessary as the Commission already dedicates
significant resources and priority to its educative role. Some examples of the
Commission's initiatives in the area of human rights education include: [72]
(a)
Face the Facts
The production and distribution of 100,000 copies to
school and community groups providing factual information to counter prevailing
misinformation about refugees, immigration and Indigenous issues. The online version
of the publication has been updated and will be released in the May 2003 together
with an education module for secondary school children and a community guide.(b) Pregnancy Guidelines
The guidelines were developed to provide
practical assistance to employers in making their workplaces more "pregnancy-friendly"
and to fulfil their legal obligations, under the federal Sex Discrimination Act,
to not discriminate against pregnant (or potentially pregnant) employees. The
guidelines arose from the National Pregnancy and Work Inquiry and reflected the
large percentage of complaints about pregnancy discrimination under the Sex Discrimination
Act.(c)
Sexual Harassment: A Code of Practice
The Code of Practice is for
Employers in the Commonwealth Government, private sector, unions, non government
voluntary bodies, clubs and educational institutions not under the control of
State Governments. Thousands of copies of the Code were distributed to business
all over Australia. The Code has recently been updated and will be released soon.
(d) Report of Ten Years Achievement of the Disability Discrimination
Act
The report details the way thousands of individuals and organisations
have used the DDA to create change, either by making complaints of discrimination
or by using the law as a basis for negotiating broad social change or educating
organisations on their responsibilities.(e) Human Rights Education for Teachers and Students
This is
an online education program providing human rights materials for teachers that
was initiated following the Commission's very successful Youth Challenge Program.
Under Youth Challenge, the Commission held one-day fora for high school students
around Australia to discuss and debate anti-discrimination issues with their teachers
and with anti-discrimination experts from the Commission and the relevant State
or Territory body.Education
modules have been produced under the banner of Teaching Human Rights and Responsibilities.
Materials and activities which deal with potential sex, race and disability discrimination
issues are presented in a way that is of relevance to the students in their school
and transition to work lives. All modules are curriculum linked. Information about
the modules is dispatched to teachers via an Electronic list serve. Some 3500
teachers have subscribed to this list serve.(f)
Report of the National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from their families
The distribution of the Community
Guide and Video which accompanied the Report of the National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from their families
to community groups, schools, governments and to the general public as well as
the development of an online education program about the Inquiry, its findings
and an evaluation of the responses to the recommendations of the Report. The module
is for upper primary and secondary school teachers and is to be released at the
end May 2003.(g)
Website
The Commission has utilised the Internet as a cost-effective
means of communicating to and educating a broad cross-section of the community
- including its online education program for schools, complaints information and
to provide information and education materials to groups such as legal practitioners,
teachers, nongovernmental organisations and employers and employees. In the 2001/2002
financial year there were about 3.3 million "page views" (a more reliable
indicator of use than "hits" of which there were 3 million per month)
by people using the Commission's website, an increase of about 40% on the previous
financial year.
4.5
"Human rights -everyone's responsibility"
It
is further proposed to give the Commission a "by-line", being "Human
Rights - Everyone's Responsibility". The Commission is to be required to
"raise public awareness of the importance of human rights" by using
and encouraging the use of that expression. The Commission may (but is not to
be required to) incorporate that expression in its logo and on its stationery.
This
"by-line" was suggested by the Commission in the context of the HRLAB
2 proposal to change the Commission's name to the Human Rights and Responsibilities
Commission. The Commission was of the view that if there were any need, which
it doubted, to refer to "responsibilities" then this should occur in
an informal "by line" rather than in its name. It was not envisaged,
however, that the use of such a "by line" should be legislatively required.
Now
that a different title is being suggested for the Commission in the AHRC Bill,
the Commission is of the view that there is no need to have a "by line"
and furthermore, especially not to have one that it is legislatively required
to use. The Commission has adopted different by-line-type messages according to
contemporary circumstances, priority and need. For example, during 1998 our stationery
carried the by-line "Fiftieth Anniversary Year : Universal Declaration of
Human Rights : 1998". Our current posters and postcards carry the message
"Discrimination Free Zone". A legislatively imposed by-line will at
best inhibit the Commission's ability to adjust its messaging to meet changing
circumstances and priorities.
4.6
Re-naming
It
is proposed to rename the Commission the Australian Human Rights Commission. The
transitional provisions specifically provide that the alteration to the name is
not to alter the continuity of the Commission's existence.
While
the Commission is satisfied with its current title, the Commission does not oppose
the renaming of the Commission in this form.
Annexure
A
Guidelines on applications
for interventions in Court proceedings
The
Commission may intervene in court proceedings in a criminal or civil jurisdiction
subject to the following guidelines:
1.
The Commission may intervene in any case in which its intervention is permitted,
sought or required by the courts.
2.
The proceedings should involve the rights of one or more persons who are within
the jurisdiction of an Australian court, or in a foreign court with a connection
to Australian jurisdiction.
3.
The proceedings must involve "intervention issues". These are issues
of:
(a)
human rights (as defined in the Human Rights and Equal Opportunity Commission
Act 1986 (Cth));
(b) discrimination in employment (as defined in the Human
Rights and Equal Opportunity Commission Act and the Industrial Relations
Reform Act 1993 (Cth)),.
(c) racial discrimination (as defined in the
Racial Discrimination Act 1975 (Cth));
(d) discrimination on the ground
of sex, marital status, pregnancy or family responsibilities or discrimination
involving sexual harassment (as defined in the Sex Discrimination Act 1984
(Cth)); or
(e) discrimination on the ground of disability (as defined
in the Disability Discrimination Act 1992 (Cth)).
4.
The intervention issues should be significant and not peripheral to the proceedings.
5.
The Commission should put the intervention issues before the court only if these
issues are not proposed to be put before the court by the parties to the proceedings
or not adequately or fully so argued.
6.
Notice of intention to seek leave to intervene in the proceedings should be given
to the parties prior to the hearing with an indication of the intervention issues
intended to be argued. In the event that a party then decides to fully raise or
adopt the proposed intervention issues, the Commission will only press its application
to intervene if the party then decides not to argue those proposed intervention
issues, or if the party particularly seeks the support of the Commission (in such
cases submissions in written form may be sufficient).
7.
Notice of the Commission's intention to seek leave to intervene (and reasons why
the Commission considers it reasonable to do so) must be given to the Attorney-General's
office and the Manager of the Human Rights Branch of the Attorney-General's Department
as soon as practicable after the Commission has decided to apply to intervene
in the proceedings.
1. Interveners also have an established role in Canadian and British
courts: see Attorney General (Cth) v Breckler (1999) 197 CLR 83 at 136
per Kirby J.
2.
Section 11(1) (o) of the Human Rights and Equal Opportunity Commission Act
1986 (Cth) ("HREOCA"), s. 20(1)(e) of the Racial Discrimination
Act 1975 (Cth)("RDA"), s. 48(1)(gb) of the Sex Discrimination
Act 1984 (Cth) ("SDA") and s.67(1)(l) of the Disability Discrimination
Act 1975 (Cth) ("DDA").
4.
Reference Re Workers' Compensation Act 1983 (NFLD) (Application to Intervene)
[1989] 2 SCR 335 at 339 per Sopinka J.
5.
Levy v Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.
6.
Ibid at 650 - 651 per Kirby J.
7.
Attorney General (Cth) v Breckler (1999) 197 CLR 83 at 136 per Kirby J.
9.
Attorney-General (Cth) v "Kevin and Jennifer" and Human Rights and
Equal Opportunity Commission [2003] FamCA 94.
10.
Ibid, see, for example, [315]-[318], [342]-[347].
12.
Levy v Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.
13.
Re Michael: John Briton, Acting Public Advocate (Victoria) v GP & KP and
HREOC (1994) FLC 92-486.
14.
Re a Teenager (1988) 94 FLR 181; Re Marion No.2 (1994) FLC 92-448;
P v P; re Lessli (1995) FLC 92-615; Re Katie (1996) FLC 92-659;
Secretary, Department of Health and Community Services v JWB and SMB (1992)
175 CLR 218.
15.
ZP v PS (1994) 68 ALJR 554.
16.
In the matter of: B v B: Family Law Reform Act 1995 (1997) No.TV 1833 of
1996.
17.
Attorney-General for the Commonwealth v Kevin & Jennifer & HREOC
[2003] FamCA 94 (21 February 2003).
18.
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183
CLR 273.
19.
Croome & Toonen v State of Tasmania (1997) 71 ALR 397.
20.
Langer v Australian Electoral Commission (1996) 186 CLR 302.
21.
Kartinyeri v Commonwealth (1997) 152 ALR 540.
22.
Western Australia & Ors v Ward & Ors [2002] HCA 28 (8 August 2002);
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58
(12 December 2002).
23.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte
Applicants S134/2002 [2003] HCA 1 (4 February 2003); NAAV v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (15
August 2002).
24.
Victorian Council for Civil Liberties Incorporated & Vardalis v Minister
for Immigration & Multicultural Affairs & Ors [2001] FCA 1297 (11
September 2001); Minister for Immigration & Multicultural Affairs &
Ors v Vardalis & VGCCL [2001] FCA 1329 (17 September 2001); Vardalis
v Minister for Immigration & Multicultural Affairs & Ors - M93/2001
(27 November 2001) (Special leave application to High Court of Australia).
25. Odhiambo v Minister for Immigration & Multicultural Affairs;
Martizi v Minister for Immigration & Multicultural Affairs [2002] FCAFC
194 (20 June 2002).
26.
Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002
[2002] FCAFC 390 (9 December 2002); Minister for Immigration and Multicultural
and Indigenous Affairs v Al Masri, No. S202/2002, appeal heard by Full Court
of Federal Court of Australia on 2 October 2002. Decision reserved.
27.
Ming Dung Luu v Minister for Immigration and Multicultural Affairs [2001]
FCA 1136 17 August 2001); Luu v Minister for Immigration Multicultural Affairs
[2002] FCAFC 369 (27 November 2002).
28.
Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245.
29.
C, L J & Z v Minister for Immigration and Ethnic Affairs, unreported,
O'Loughlin J, 30 March 1995.
30.
Long Guan Chun &Ors v Minister for Immigration, Local Government and Ethic
Affairs& Ors (1996) 65 FCR 164; (1996) 136 ALR 303..
31.
Record of Investigation into Deaths of Nurjan Husseini and Fatimeh Husseini, Coroners
Court of WA, Ref No 29/02 (13 December 2002).
32.
Re McBain: Ex parte Australian Catholic Bishops Conference [2002] HCA 16
(18 April 2002).
33.
GrainCorp Operations Ltd & Anor v Markham (2003) EOC 93-250.
34.
Record of Investigation into Deaths of Nurjan Husseini and Fatimeh Husseini, Coroners
Court of WA, Ref No 29/02 (13 December 2002).
35.
GrainCorp Operations Ltd & Anor v Markham (2003) EOC 93-250.
36.
Items 24, 38, 91, 118 and 136 of Schedule 1 of the AHRC Bill.
37.
See the Commission's submission at http://www.humanrights.gov.au/legal/submissions/hrla98.html
38.
Item 26 of Schedule 1 of the AHRC Bill.
39.
Second Reading Speech, Hansard, House of Representatives, 27 March 2003,
13434.
40.
UN Doc: A/RES/48/134 (1993): http://www.un.org/documents/ga/res/48/a48r134.htm
41.
See para. 40 of Explanatory Memorandum of the AHRC Bill.
43.
Ibid 18 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
44.
Ibid 365 per Brennan CJ, Deane, Dawson and Toohey JJ. See also George Williams,
Human Rights under the Australian Constitution (2002), 209-210.
45.
See the cases referred to in footnote 46 below and add Rodney Croome &
Nicholas Toonen v The State of Tasmania (1997) 71 ALR 397; Re McBain: Ex
parte Australian Catholic Bishops Conference [2002] HCA 16.
46.
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183
CLR 273; C, LJ & Z v Minister for Immigration and Ethnic Affairs, Unreported,
O'Loughlin J, 30 March 1995 & Long Guan Chun, Li Liu Ying & Long Guan
Juan v Minister for Immigration, Local Government & Ethnic Affairs (1996)
136 ALR 303; Wu Yu Fang & Ors v Minister for Immigration & Ethnic Affairs,
FedCt(NT) DG4/95 & Wu Yu Fang v Minister for Immigration and Ethnic Affairs
and Commonwealth of Australia (1996) 64 FCR 245; In the matter of: B v
B: Family Law Reform Act 1995 (1997) No.TV 1833 of 1996; Kartinyeri v The
Commonwealth of Australia (1997) 152 ALR 540; Western Australia v Ward
(2002) 191 ALR 1; Ming Dung Luu v Minister for Immigration and Multicultural
Affairs [2001] FCA 1136 & Luu v Minister for Immigration Multicultural
Affairs [2002] FCAFC 369; Victorian Council for Civil Liberties Incorporated
& Vardalis v Minister for Immigration & Multicultural Affairs & Ors
[2001] FCA 1297 & Minister for Immigration & Multicultural Affairs
& Ors v Vardalis & VGCCL [2001] FCA 1329 & Vardalis v Minister
for Immigration & Multicultural Affairs & Ors, M93/2001 (27 November
2001) (Special leave application to High Court of Australia); Attorney-General
for the Commonwealth v Kevin and Jennifer [2003] FamCA 94; Peter Martizi
and Simon Odhiambo v Minister for Immigration and Multicultural Affairs [2002]
FCAFC 194; Members of the Yorta Yorta Aboriginal Community v State of Victoria
& Ors (2002) 194 ALR 538; NAAV v Minister for Immigration and Multicultural
Affairs [2002] FCAFC 228; S134/ 2002 v Minister for Immigration and Multicultural
Affairs (2003) 195 ALR 1; Minister for Immigration, Multicultural and Indigenous
Affairs v VFAD [2002] FCAFC 390; Al Masri v Minister for Immigration, Multicultural
and Indigenous Affairs, [2003] FCAFC 70 (15 April 2003); Record of Investigation
into Deaths of Nurjan Husseini and Fatimeh Husseini, Coroners Court of WA, Ref
No 29/02 (13 December 2002).
47.
Second Reading Speech, Hansard, House of Representatives, 27 March 2003,
13434.
48.
Item 13 of Schedule 1 to the AHRC Bill (and numerous proposed consequential amendments).
49.
See, for example, paragraph 73 of the Explanatory Memorandum.
50.
See item 144 of Schedule 1 to the AHRC Bill.
51.
see item 146 of Schedule 1 to the AHRC Bill.
52.
Second Reading Speech of AHRC Bill, Hansard, 27 March 2003, 13434.
53.
See the Commission's submission at http://www.humanrights.gov.au/legal/submissions/hrla98.html
54. Section 46B(2) of HREOCA. Note that the Commission has previously
argued that this needs to be strengthened so that one necessary criterion for
the position of Social Justice Commissioner is that the Commissioner is an Indigenous
person: see HREOC submission to Senate Legal and Constitutional Legislation Committee
inquiry into HRLAB 2.
56.
Section 10A(a)(i) and (c) of HREOCA.
57.
Sections 29(2)(c)(i) and 35(2)(c)(i) of HREOCA.
58.
See Explanatory Memorandum para 49.
59.
The Commonwealth was respondent in 60% of the matters where the Commission recommended
financial compensation in its report to the Attorney-General and it was not paid
by the respondent.
60.
See section 29(2)(e) of HREOCA. Note also that a non-enforceable power to recommend
compensation has been conferred upon other government bodies with inquiry powers
(for example, the New South Wales Ombudsman).
61.
Item 31 of the AHRC Bill repeals section 19(2B) of HREOCA.
62.
See item 53 of Schedule 1 to the AHRC Bill.
64.
Second Reading Speech of AHRC Bill, Hansard, 27 March 2003, 13434.
65.
Section 19(2)(b) of HREOCA.
68.
See, for example, s. 11(1) of HREOCA.
69.
See, for example, item 20 of the AHRC Bill.
70.
Explanatory Memorandum of the AHRC Bill, para. 28.
71.
See, for example, item 20 (aab) of the AHRC Bill.
72.
A thorough analysis of the Commission's educational role is contained in the Commission's
submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade
inquiry into Human Rights,Good Governance and Education. The submission is yet
to be released by the Committee.
Last
updated 29 April 2003.