Federal discrimination laws in the spotlight: public hearing


Federal discrimination laws in the spotlight: public hearing

Federal discrimination law will take centre stage tomorrow when a public hearing into proposed changes to human rights legislation kicks off in Sydney.


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Federal discrimination law will take centre stage tomorrow when a public hearing into proposed changes to human rights legislation kicks off in Sydney.
The Federal Government introduced the Australian Human Rights Commission Legislation Bill 2003 at the end of March. The new Bill was referred to a Senate committee and seeks to reduce the powers of the Human Rights and Equal Opportunity Commission and change the Commission's name.
If the Bill is passed in its current form HREOC would:
  • lose its power to recommend compensation and damages payments following complaints of discrimination;
  • lose specific human rights, sex discrimination, race discrimination, disability discrimination and the rights of Indigenous people commissioners - they would be replaced by a president and three human rights commissioners who would have expertise covering a variety of discrimination matters;
  • take on a more educative function - such as the development of guidelines to help business and the community comply with their obligations under the federal anti-discrimination legislation;
  • lose its automatic right to intervene in court proceedings that raise human rights issues, except where the president of the Commission was a federal court judge, and where the Commission had been asked to provide advice to the court on a particular issue;
  • make the president responsible for all complaint handling - depending on the workload, the Attorney-General would be able to appoint part-time legally qualified complaints commissioners who would act in place of the president but wouldn't be part of the Commission;
  • lose its power to establish community relations councils and advisory committees;
  • lose the power to delegate work of the Commission; and
  • change its name to the Australian Human Rights Commission.
The Attorney-General Daryl Williams claimed the new law would help the Commission take on new areas of responsibility, such as age discrimination, and manage increasing incidence of issues which cross human rights boundaries, such as matters relating to women with disabilities.
He said a greater focus on education by the new Commission would put the emphasis on preventing discriminatory behaviour rather than reacting after it occurred.
A spokesperson for the Attorney-General told WorkplaceInfo the Attorney- Generalrejected the notion that the replacement of the current specified expert commissioners with commissioners that handled all types of discrimination would put complaint hearings in jeopardy.
The spokesperson was adamant that under the proposed new laws the commissioners, as a group, would have the relevant knowledge across all discrimination and human rights disciplines to effectively manage discrimination claims.
The Commission disagrees
According to the Human Rights and Equal Opportunity Commission, proposals to 'replace the identified portfolio commissioners' with three human rights commissioners created overlapping responsibilities, which were not clearly identified. 'The Commission considers this change to be unnecessary and unproductive,' HREOC said in a statement issued at the time the Bill was tabled in Parliament.
On the issue of education, HREOC claimed 'the current structure of the Commission provides a strong educational and advocacy role for individual commissioners and has received significant community support since 1986'.
Of major concern to HREOC is the Government's determination to prevent it from intervening in human rights and discrimination cases.
The current powers of HREOC allow it to 'present written and oral argument in legal proceedings involving human rights and discrimination issues. The Commission has used those powers in approximately 35 cases before Australian courts and tribunals and has never been refused leave to intervene.'
HREOC said that in a number of cases in which it had intervened the Government had been a party to the litigation. It was inappropriate that a party to litigation could determine who could intervene, HREOC added.
ALP's view
The Shadow Attorney-General and Workplace Relations Minister Robert McClelland told WorkplaceInfo the ALP would oppose the Government's attempt to change the structure and functions of HREOC.
The Government's proposed changes interfered with the independence of HREOC, McClelland said. The Attorney-General should not be able to determine parties to human rights, discrimination and any other court cases, he added.
Removing the specified commissioners would cause HREOC to lose specialised commissioners, such as sex discrimination commissioner Prue Goward, who could speak with authority on their area of expertise, he said.
Winding back HREOC's powers to recommend payment of damages would effectively compel people to take separate court action, he claimed. In the past, the community generally accepted HREOC recommendations. But if HREOC could no longer make these recommendations people seeking compensation would have to take separate legal action. This could be costly and turn people off pursing their rights, he warned.
He agreed that education, as well as litigation, was necessary for improving human rights and reducing discrimination. But he was adamant that being able to mount a court case also had significant educative functions in ensuring that the community understood the impact of discrimination on minority groups.
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