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.