Human Rights Legislation Amendment Bill 1996

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.