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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH
OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION
BILL 2003
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
This Bill provides for the restructure of the Human Rights and Equal
Opportunity Commission (the old Commission) and its renaming as the Australian
Human Rights Commission (the new Commission). The new Commission will continue
to have responsibility for protecting and promoting the human rights of all
Australians, as well as for promoting an understanding and acceptance of the
responsibility of Australians to respect each others human rights. This will be
emphasised by the adoption of a new by-line accompanying the Commission’s
new name. The new by-line is ‘human rights – everyone’s
responsibility’.
The executive structure of the new Commission
will consist of a President and three Human Rights Commissioners. The President
and Commissioners will, as a group, have expertise covering the variety of
matters likely to come before the Commission. This new collegiate structure
will provide the Commission with greater flexibility to deal with current human
rights issues which cut across the boundaries of the existing specialisations
(for example, women with disabilities). Emerging human rights areas, such as
age discrimination, will also be able to be dealt with without the need to
appoint new specialist commissioners as each new area develops.
The
Bill makes education, dissemination of information on human rights and
assistance to business and the general community — for example, through
the development of guidelines which will assist people to comply with their
obligations under federal anti-discrimination legislation — central
functions of the new Commission. The intention is that the new
Commission’s highest priorities will be those that relate to educating
Australians about human rights and discrimination, and helping them understand
their responsibilities, as members of the Australian community, to respect other
people’s human rights.
In addition to those outlined above, the
Bill makes the following changes:
• Before exercising its power to
seek leave to intervene in court proceedings the Commission will be required to
either obtain the approval of the Attorney-General for the exercise of this
power (if the President of the new Commission is not, and was not immediately
before appointment as President a federal Judge) or notify the Attorney-General
of the proposed intervention (if the President of the new Commission is, or was
immediately before appointment as President, a federal Judge).
• The new Commission will not have a power to recommend the
payment of damages or compensation following inquiries into certain types of
complaints under the retitled Australian Human Rights Commission Act
1986.
• The Attorney-General will be able to appoint part-time
Complaints Commissioners to whom the President will be able to delegate
complaint-handling functions.
• The provisions for establishing a
Community Relations Council and advisory committees are removed.
• The new Commission will not have powers of delegation under the
Disability Discrimination Act 1992, the Racial Discrimination Act
1975 and the Sex Discrimination Act 1984. Instead, the Bill
provides for their repeal in those Acts and consolidation into one delegation
provision in the renamed Australian Human Rights Commission Act 1986.
The Bill also makes other minor amendments and consequential amendments
to other legislation, for example the Crimes (Torture) Act 1988, the
Defence Act 1903, the Workplace Relations Act 1996 and the
Federal Court of Australia Act 1976.
The measures proposed by this Bill are budget neutral.
1. The following abbreviations are used throughout these notes:
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DDA
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Disability Discrimination Act 1992 |
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HREOCA
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Human Rights and Equal Opportunity Commission Act 1986
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HRLAA (No 1)
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Human Rights Legislation Amendment Act (No. 1) 1999 |
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New Commission
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Australian Human Rights Commission (after the amendments made by this
Bill)
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Old Commission
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Human Rights and Equal Opportunity Commission(before the amendments made by this Bill)
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RDA
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Racial Discrimination Act 1975 |
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SDA
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Sex Discrimination Act 1984 |
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Retitled Act
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The Act after the amendments made by this Bill retitle the Human Rights and Equal Opportunity Commission Act 1986 to become the Australian Human Rights Commission Act 1986. |
2. This clause provides that the Act may be cited as the Australian
Human Rights Commission Legislation Bill 2003.
3. This clause provides for the commencement of the Act. It provides
that the Australian Human Rights Commission Legislation Act will commence
on the day on which the Act receives Royal Assent, and the amendments it makes
to other acts, including the HREOCA, (these amendments are outlined in Schedules
1 and 2 of the Bill), commence on a day to be fixed by proclamation. If
Schedules 1 and 2 do not commence within 6 months beginning on the day on which
the Australian Human Rights Commission Legislation Act 2003
receives the Royal Assent, they commence the day after the end of that period.
4. This is the operative clause which gives effect to the amendments set
out in the Schedules to the Act.
SCHEDULE 1 – AMENDMENT OF THE HUMAN
RIGHTS AND PRIVACY LEGISLATION
5. This part of Schedule 1 contains amendments to the HREOCA.
6. This item amends the long title of the HREOCA by omitting the words
‘Human Rights and Equal Opportunity’ and substituting
‘Australian Human Rights’. After this amendment, the HREOCA will be
known as the Australian Human Rights Commission Act 1986.
7. This item amends the short title of the Retitled Act, consequential
on the amendment to the long title of the Act.
8. In the existing HREOCA, the term ‘appointed member’ is
defined as ‘the President or the Human Rights Commissioner’ and is
used in the provisions in Division 5 relating to terms and conditions of
appointment.
9. The existing position of Human Rights Commissioner will
be removed and three Human Rights Commissioner positions, with responsibility
with the President for all functions of the new Commission, created. The
President and the three Human Rights Commissioners will have common provisions
relating to terms and conditions of appointment in the retitled Act. The
definition of ‘appointed member’ is no longer required to
distinguish the President and Human Rights Commissioner from other Commission
members whose terms and provisions were found in other Acts, ie the
Sex Discrimination Commissioner, the Race Discrimination Commissioner
and the Disability Discrimination Commissioner.
10. This item amends the definition of ‘Commission’,
consequential on the amendment made by a later item which renames the
Commission.
11. This item inserts in subsection 3(1) of the retitled HREOCA a
definition of ‘Complaints Commissioner’. This amendment is
consequential on the amendment made by a later item which creates the position
of Complaints Commissioner.
12. This item repeals the definition of ‘Disability Discrimination
Commissioner’, consequential on the amendment made by a later item which
repeals Part 6 of the DDA (relating to the position of the Disability
Discrimination Commissioner). The specific position of Disability
Discrimination Commissioner is no longer required because of the new structure
created by later items which change the composition of the new
Commission’s executive.
13. This item inserts in subsection 3(1) of the retitled HREOCA a
definition of ‘Human Rights Commissioner’, consequential on the
amendment made by a later item which changes the composition of the new
Commission’s executive.
14. This item amends the definition of ‘member’ by deleting
the words ‘and includes the President’. The reference to the
President will be unnecessary as a later item amends section 8 to specifically
identify the members of the new Commission.
15. This item repeals the definition of ‘Race Discrimination
Commissioner’, consequential on the amendment made by a later item which
repeals Parts V and VI of the RDA. The specific position of Race Discrimination
Commissioner is no longer required because of the new structure created by later
items which change the composition of the new Commission’s executive.
16. This item repeals the definition of ‘Sex Discrimination
Commissioner’, consequential on the amendment made by a later item which
repeals Part V of the SDA. The specific position of Sex Discrimination
Commissioner is no longer required because of the new structure created by later
items which change the composition of the new Commission’s executive.
17. This item replaces the heading to Part II of the Retitled Act,
consequential on the amendment made by the item below which renames the old
Commission.
18. This item amends subsection 7(1) of the Retitled Act (which
establishes the Commission) to rename the Commission the Australian Human Rights
Commission. The heading to section 7 of the Retitled Act is also altered
accordingly.
19. This item amends subsection 8(1) of the Retitled Act to prescribe
the composition of the new Commission. The new Commission will comprise:
• a President;
• three Human Rights Commissioners.
20. The item makes clear that the President and Human Rights Commissioners
are members of the Commission. The Human Rights Commissioners will not have
specific functions allocated to them but will be charged with holding
responsibility, as a group, for all functions of the new Commission. This new
streamlined and collegiate structure will provide the Commission with greater
flexibility to protect human rights for all Australians by promoting awareness
of discrimination intersections (for example, women with disabilities) and
allowing emerging areas (such as age discrimination) to be addressed without the
need to appoint new specialist commissioners.
21. This item amends subsection 8(6) of the Retitled Act to take into
account the renumbering of section 31 which results from the insertion of a new
subsection (2) into that section.
22. This item also amends subsection 8(6) of the Retitled Act to take
into account the renumbering of section 31 which results from the insertion of a
new subsection (2) into that section.
23. This item amends subsection 8(7) of the Retitled Act, consequential
on the amendment made by an earlier item which changes the composition of the
new Commission’s executive. This item ensures that the performance of the
functions or the exercise of the power of the new Commission is not affected by
reason only of a vacancy in one of the executive positions.
24. This item amends subsection 8B(1) of the Retitled Act to provide for
the appointment by the Governor-General of Human Rights Commissioners as
full-time members of the new Commission.
25. This item amends subsection 8B(2) of the Retitled Act, consequential
on the amendment made by an earlier item which provides for the appointment of
three Human Rights Commissioners.
26. This item also makes a minor
technical drafting amendment to update the subsection to refer to the
‘Minister’ rather than the ‘Governor-General’ being
satisfied that a person has appropriate qualifications, knowledge or experience.
This amendment is being made in accordance with Parliamentary Counsel
Drafting Direction 2000, No. 3 Exercise of powers of the Governor-General
‘so as to make clear who is to form the opinion, or do the thing, that is
a formal pre-condition for the exercise of a power by the
Governor-General’.
27. This item provides that before the Governor-General makes an
appointment under subsection 8B(1), the Minister must be satisfied that the
President, the other Human Rights Commissioners and the person, as a group, have
expertise in the variety of matters likely to come before the Commission. This
requirement is in addition to the knowledge, qualifications or experience
requirement of subsection 8B(2). Although there will be no specific functions
or subject areas legislatively allocated to individual Human Rights
Commissioners, the Commissioners as a whole will be charged with holding
responsibility for all functions of the Commission and therefore must, among
them, have the expertise to undertake the variety of matters likely to come
before the Commission.
28. This item amends subsection 11(1) of the Retitled Act to make
education and dissemination of information on human rights the central focus of
the new Commission’s functions, primarily by re-ordering and enhancing the
existing functions set out in subsection 11(1).
29. This item inserts
new paragraphs (aaa), (aab), (aac) and (aad) into subsection 11(1) of the
retitled HREOCA. Paragraphs 11(1)(aaa), (aac) and (aad) broadly reflect
existing paragraphs 11(1)(g), (h) and (n), with the addition of references to
the responsibility of persons and organisations to respect human rights, while
paragraph 11(1)(aab) confers on the new Commission a function which was not
conferred on the old Commission.
30. These amendments are intended to
focus the new Commission’s attention on the following functions:
• promoting an understanding and acceptance, and the public
discussion, of human rights in Australia, and of the responsibility of persons
and organisations in Australia to respect those rights (new paragraph
11(1)(aaa));
• disseminating information on human rights, and on the
responsibility of persons and organisations to respect those rights (new
paragraph 11(1)(aab));
• undertaking research and educational
programs, on behalf of the Commonwealth, for the purpose of promoting human
rights, and coordinating any such programs undertaken by any other person or
authority on behalf of the Commonwealth (new paragraph 11(1)(aac));
and
• preparing, and publishing in a manner the new Commission
considers appropriate, guidelines for avoiding acts or practices of a kind in
respect of which a function is conferred by paragraph 11(1)(f) of the Retitled
Act (new paragraph 11(1)(aad)). Paragraph 11(1)(f) confers a function of
inquiring into acts or practices inconsistent with or contrary to any human
right (as defined in subsection 3(1) of the Retitled Act), done by or on behalf
of the Commonwealth or a Commonwealth authority, under an enactment or within a
Territory.
31. Paragraph 11(1)(a) currently states that the functions of the
Commission are those conferred on the Commission by the RDA, the SDA or
‘any other enactment’. This item is a minor technical amendment
which inserts into paragraph 11(1)(a) of the Retitled Act a specific reference
to the DDA. Functions under the DDA were already conferred on the Commission
because the DDA constitutes ‘any other enactment’, however this item
makes it explicit that the functions of the Commission include such functions as
are conferred on the Commission by the DDA.
32. This item amends paragraph 11(1)(d) of the Retitled Act to take into
account the renumbering of section 31 which results from the insertion of a new
subsection (2) into that section.
33. This item repeals paragraphs 11(1)(g), (h) and (n) of the Retitled
Act, consequential on the amendments made by an earlier item that re-order and
enhance the existing functions of the Commission.
34. This item amends paragraph 11(1)(o) to be subject to new subsections
11(5) and (6) of the Retitled Act. These new subsections are created by a later
item.
35. This item inserts two new subsections (1A) and (1B) into section 11,
which emphasise the particular educative role of the new Commission. The
Commission’s functions under paragraph 11(1)(aaa) and 11(1)(aab) are based
upon the principle that for a person to be able to enjoy human rights, there is
a corresponding responsibility for persons and organisations to respect those
human rights. New subsection 11(1A) seeks to raise public awareness of this
responsibility by instructing the Commission to find opportunities to use the
expression human rights – everyone’s responsibility.
New subsection 11(1B) provides examples of the use of the expression as a
by-line in the Commission’s logo and on its stationery.
36. This item qualifies paragraph 11(1)(o) of the Retitled Act to make
the exercise by the new Commission of its function of seeking leave to intervene
in court proceedings which involve human rights issues conditional on:
• the Attorney-General first having given approval in accordance with new subsection 11(5) unless new subsection (6) applies; or
• if the President of the new Commission is, or was immediately before
appointment as President, a federal Judge (subsection (6)) - to require the
Commission to notify the Attorney-General of its intention to seek leave to
intervene in court proceedings and its reasons for doing so. The notice must be
given when there is still a reasonable period before the Commission seeks leave
to intervene in the court proceedings.
37. As First Law Officer of the
Commonwealth the Attorney-General has a general public interest role in
litigation, including human rights litigation. When the new Commission is given
leave to intervene in court proceedings, it will effectively become a party to
those proceedings, advocating and/or defending a particular legal position, or a
particular interpretation of any legislation in issue in the proceedings.
Requiring the new Commission to seek the Attorney-General’s approval for
such an intervention before the new Commission exercises its function to seek
leave to intervene will ensure that the intervention function is only exercised
after the broader interests of the community have been taken into
account.
38. In deciding whether to approve the exercise by the new
Commission of its power to seek leave to intervene in court proceedings the
Attorney-General may have regard to a range of matters set out in subsection
(5). The inclusion of these matters in subsection (5) is not in any way
intended to limit the range of matters to which the Attorney-General may have
regard in making his or her decision, nor is it intended that the
Attorney-General be required to consider any of these matters.
39. In
this new section, the matters to which the Attorney-General may have regard are
as follows:
• whether there has been an intervention in the
proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the Australian Human
Rights Commission Act 1986, the DDA, the RDA or the SDA;
• whether, in the Attorney-General’s opinion, there are special
circumstances such that it would be in the public interest for the new
Commission to intervene.
40. The requirement for the new Commission to
notify the Attorney-General of its intention to seek leave to intervene in court
proceedings and its reasons for doing so, but not requiring the
Attorney-General’s formal approval of this function, when the President
is, or was immediately before appointment as President, a federal Judge ensures
that there are no constitutional issues arising from the appointment of a
federal Judge as President.
41. This item repeals section 17 of the HREOCA. That section currently
provides for the establishment of advisory committees to advise the old
Commission on the performance of its functions and, when requested by the
Minister, to report on Australian compliance with certain human rights
standards. The new Commission will retain the power - currently in section 15
of the HREOCA - to work with and consult appropriate persons, governmental
organisations and non-governmental organisations.
42. This item and a following item amends subsection 19(1) of the
Retitled Act to ensure that the new Commission can delegate its powers under not
only the Australian Human Rights Commission Act 1986,
but also under any other law which confers powers on the new Commission.
Section 19 will provide the only source of power for the new Commission to
delegate its powers to members or other persons or bodies (with the exception of
new sections 19(1A) and 46PNA relating to Complaints Commissioners). It
replaces and consolidates the similar delegation powers in section 121 of the
DDA, section 40 of the RDA and section 104 of the SDA.
43. This item inserts new subsection 19(1A) which permits the President
to delegate to a Complaints Commissioner the performance of functions in
relation to a complaint described in either paragraph 20(1)(b) or 31(1)(b).
This includes functions in relation to, respectively, section 29 or section 35
notices relating to, and reports about, the inquiry.
44. The new
Complaints Commissioners will be able to be appointed under new section 42A.
Other functions of the new Complaints Commissioners are outlined in new section
46PNA. Complaints Commissioners will be delegates of the President but will not
be members of the Commission.
45. This item amends subsection 19(2) of the Retitled Act to ensure that the new Commission can delegate its powers under not only the Australian Human Rights Commission Act 1986, but also under any other law which confers powers on the new Commission. This item relates to delegation to a member of the Commission, a member of the staff of the Commission or any other person or body of persons.
46. This item amends section 19 of the Retitled Act by repealing
existing subsections (2A) and (2B) and replacing them with a new subsection
(2A).
47. A key element of the Government’s policy underlying
the amendments made by the HRLAA (No. 1) was the decision to centralise all
responsibility for complaint handling in the President of the old Commission
(and, after the amendments made by this Act, the President of the new
Commission). Subsection 19(2A), as inserted by the HRLAA (No. 1), gave effect
to this policy by prohibiting the President from delegating his or her powers
under Parts IIB or IIC of the HREOCA (which deal, respectively, with the
handling of complaints of unlawful discrimination under the DDA, the RDA and the
SDA, and with the referral of discriminatory awards and determinations to other
bodies). However, existing subsection 19(2B) currently permits the President to
delegate to the Human Rights Commissioner (but not to any other member of the
old Commission) his or her powers in respect of complaints under sections 11 and
31 of the existing HREOCA (which deal, respectively, with breaches of human
rights and with discrimination in employment or occupation).
48. New
subsection 19(2A) removes this anomaly by extending the prohibition on the
President’s power of delegation to include his or her powers in respect of
complaints under sections 11 and 31 of the Retitled Act. This will ensure that
the legislation fully reflects the Government’s policy on Presidential
responsibility for complaint handling. A later item will permit the
Attorney-General to appoint part-time Complaints Commissioners who will be able
to assist the President with his or her complaint handling workload (but who
will not be members of the Commission).
49. This item repeals subsection 19(6) of the Retitled Act
(consequential on the amendment made by an earlier item which consolidates the
powers of delegation under the DDA, the RDA and the SDA into the Australian
Human Rights Commission Act 1986) and replaces it with a new provision
that ensures that in undertaking functions delegated under section 19(1A) a
Complaints Commissioner can act effectively by exercising any power conferred on
a member of the Commission. For example, if required for an inquiry into a
complaint described in paragraph 20(1)(b) a Complaints Commissioner can obtain
information and documents (section 21). This power is subject to any
provision in the instrument of delegation.
50. These items amend subsection 24(1A) of the Retitled Act,
consequential on the amendment made by a later item which removes the position
of Aboriginal and Torres Strait Islander Social Justice Commissioner. The
specific position of Aboriginal and Torres Strait Islander Social Justice
Commissioner is no longer required because of the new structure created by
earlier items which change the composition of the new Commission’s
executive.
51. This item repeals paragraph 29(2)(c) of the Retitled Act and
substitutes a new paragraph 29(2)(c). Where the old Commission has inquired
into an act or practice engaged in by a person, and has found that the act or
practice is inconsistent with, or contrary to, any human right, existing
paragraph 29(2)(c) gives it the power to make recommendations, amongst other
things, for the payment of compensation to a person who has suffered loss or
damage as a result of the act or practice. These recommendations cannot
currently be pursued in any way because, unlike in the case of discrimination
under the DDA, the RDA and the SDA, the acts or practices to which these
recommendations relate are not made unlawful under the HREOCA.
52.
This item removes that power, leaving the new Commission with a power to
recommend the taking of any action, other than the payment of compensation or
damages, to remedy or reduce loss or damage suffered by a person as a result of
the act or practice.
53. This item and the following item amend section 31 of the Retitled
Act to make education, dissemination of information on equality of opportunity
and treatment in employment and occupation the central focus of the new
Commission’s functions, primarily by re-ordering and enhancing the
existing functions set out in section 31. These amendments mirror those made by
earlier items in relation to subsection 11(1) of the Retitled Act.
54. This item inserts new paragraphs (aa), (ab), (ac) and (ad) into section
31 of the Retitled Act. Paragraphs 31(aa), (ac) and (ad) broadly reflect
existing paragraphs 31(c), (d) and (h), with the addition of references to the
responsibility of persons and organisations to respect equality of opportunity
and treatment in employment and occupation, while paragraph 31(ab) confers on
the new Commission a function which was not conferred on the old Commission.
55. These amendments are intended to focus the new Commission’s
attention on the following functions:
• promoting an
understanding and acceptance, and public discussion, of equality of opportunity
and treatment in employment and occupation, and of the responsibility of persons
and organisations in Australia to respect that equality (new paragraph 31(aa));
• disseminating information on equality of opportunity and treatment
in employment and occupation, and on the responsibility of persons and
organisations to respect that equality (new paragraph 31(ab));
• undertaking research and educational programs, on behalf of the
Commonwealth, for the purpose of promoting equality of opportunity and treatment
in employment and occupation, and coordinating any such programs undertaken by
any other person or authority on behalf of the Commonwealth (new paragraph
31(ac)); and
• preparing, and publishing in a manner the new
Commission considers appropriate, guidelines for avoiding acts or practices of a
kind in respect of which a function is conferred by paragraph 31(1)(b) of the
Retitled Act (new paragraph 31(ad)). Paragraph 31(1)(b) confers a function of
inquiring into acts or practices which may constitute discrimination (as defined
in subsection 3(1) of the Retitled Act), done by or on behalf of the
Commonwealth or a State, or a Commonwealth or State authority, under a
Commonwealth or State enactment or within a State or Territory.
56. This item repeals paragraphs 31(c), (d) and (h) of the Retitled Act,
consequential on the amendments made by the item above that re-order and enhance
the functions of the Commission.
57. These items qualify paragraph 31(j) of the Retitled Act to make the exercise by the new Commission of its function of seeking leave to intervene in court proceedings which involve human rights issues conditional on:
• the Attorney-General first having given approval in accordance with new subsection 31(2) unless new subsection (3) applies; or
• if the President of the new Commission is, or was immediately before
appointment as President, a federal Judge (subsection (3)) - to require the
Commission to notify the Attorney-General of its intention to seek leave to
intervene in court proceedings and its reasons for doing so. The notice must be
given when there is still a reasonable period before the Commission seeks leave
to intervene in the court proceedings.
58. As First Law Officer of the
Commonwealth the Attorney-General has a general public interest role in
litigation, including human rights litigation. When the new Commission is given
leave to intervene in court proceedings, it will effectively become a party to
those proceedings, advocating and/or defending a particular legal position, or a
particular interpretation of any legislation in issue in the proceedings.
Requiring the new Commission to seek the Attorney-General’s approval for
such an intervention before the new Commission exercises its function to seek
leave to intervene will ensure that the intervention function is only exercised
after the broader interests of the community have been taken into
account.
59. In deciding whether to approve the exercise by the new
Commission of its power to seek leave to intervene in court proceedings the
Attorney-General may have regard to a range of matters set out in subsection
(2). The inclusion of these matters in subsection (2) is not in any way
intended to limit the range of matters to which the Attorney-General may have
regard in making his or her decision, nor is it intended that the
Attorney-General be required to consider any of these matters.
60. In
this new section, the matters to which the Attorney-General may have regard are
as follows:
• whether there has been an intervention in the
proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the Australian Human
Rights Commission Act 1986, the DDA, the RDA or the SDA;
• whether, in the Attorney-General’s opinion, there are special
circumstances such that it would be in the public interest for the new
Commission to intervene.
61. The requirement for the new Commission to
notify the Attorney-General of its intention to seek leave to intervene in court
proceedings and its reasons for doing so, but not requiring the
Attorney-General’s formal approval of this function, when the President
is, or was immediately before appointment as President, a federal Judge ensures
that there are no constitutional issues arising from the appointment of a
federal Judge as President.
62. This item amends subsection 32(1) of the Retitled Act to take into
account the renumbering of section 31 resulting from the insertion of a new
subsection (2) into that section.
63. This item amends section 33 of the Retitled Act to take into account
the renumbering of section 31 resulting from the insertion of a new subsection
(2) into that section.
64. This item repeals paragraph 35(2)(c) of the Retitled Act and
substitutes a new paragraph 35(2)(c). Currently, where the old Commission has
inquired into an act or practice engaged in by a person, and has found that the
act or practice constitutes discrimination (as defined in subsection 3(1) of the
Retitled Act), existing paragraph 35(2)(c) gives it the power to make
recommendations, amongst other things, for the payment of compensation to a
person who has suffered loss or damage as a result of the act or practice.
These recommendations cannot currently be pursued in any way because, unlike in
the case of discrimination under the DDA, the RDA and the SDA, the acts or
practices to which these recommendations relate are not made unlawful under the
HREOCA.
65. This item removes that power, leaving the new Commission
with a power to recommend the taking of any action, other than the payment of
compensation or damages, to remedy or reduce loss or damage suffered by a person
as a result of the act or practice.
66. This item amends subsection 36(3) of the Retitled Act, consequential
on the amendment made by an earlier item which provides for the appointment of
three Human Rights Commissioners.
67. This item amends paragraph 36(3)(b) of the Retitled Act,
consequential on the amendment made by the above item.
68. This item amends subsection 36(9) of the Retitled Act, consequential
on the amendment made by an earlier item which provides for the appointment of
three Human Rights Commissioners. The heading to section 36 is altered
accordingly.
69. These items amend subsections 37(1), 37(4), 38(1) and 38(2), section
40, and subsections 41(3) and 41(4) of the Retitled Act, consequential on the
amendments made by an earlier item which repeals the definition of
‘appointed member’.
70. This item establishes a new position of ‘Complaints
Commissioner’. An earlier item would have the effect of centralising the
complaint handling functions in the President. In order to provide a further
option for undertaking complaint handling workloads arising from this, the
Attorney-General will be able to appoint legally qualified persons as Complaints
Commissioners on a part-time basis, with terms and conditions determined by the
Attorney-General. These Complaints Commissioners will act as delegates of the
President for the purpose of handling complaints described under section
20(1)(b) and referred under section 46PD. These Complaints Commissioners will
be delegates of the President but will not be members of the Commission. Work
will be allocated to a Complaints Commissioner by the President.
71. New
subsections (4) and (5) concern the appointment of a judicial officer of a State
as a Complaints Commissioner. If necessary, the Attorney-General may enter into
an arrangement with the appropriate Minister of the State, including an
arrangement to reimburse the State for the services of the judicial officer, to
secure the services of that person.
72. New subsection (6) provides for
the continuity of a person’s tenure and other rights and privileges as the
holder of a Commonwealth office where a person appointed as a Complaints
Commissioner is the holder of a Commonwealth office.
73. New subsection
(7) defines ‘Commonwealth office’ and ‘legally qualified
person’ for the purposes of the section.
74. These items respectively amend the heading to Part IIA, repeal the
heading to Division 1 of Part IIA, and repeal the definition of
‘Commissioner’, of the Retitled Act, consequential on the amendment
made by the item below which removes the position of Aboriginal and Torres
Strait Islander Social Justice Commissioner. The specific position of
Aboriginal and Torres Strait Islander Social Justice Commissioner is no longer
required because of the new structure created by earlier items which change the
composition of the new Commission’s executive.
75. This item repeals section 46B of the Retitled Act. The effect is to
remove the position of Aboriginal and Torres Strait Islander Social Justice
Commissioner, consistent with the removal of all the special-purpose
Commissioner positions which comprise the old Commission.
76. There is
no change to the substantive functions which the Aboriginal and Torres Strait
Islander Social Justice Commissioner currently performs on behalf of the old
Commission. The functions will be conferred on the Commission itself. Section
19 of the
Australian Human Rights Commission Act 1986 will
continue to allow the new Commission to delegate the performance of those
functions, for example to one of the three Human Rights Commissioners appointed
under section 8B.
77. This item adds a note at the end of subsection 46C(1) of the
Retitled Act to alert the reader to the functions conferred on the Commission by
section 209 of the Native Title Act 1993 (NT Act). These
functions are to prepare and submit to the Commonwealth Minister a report on the
operation of the NT Act, the effect of the NT Act on the exercise and enjoyment
of human rights of Aboriginal peoples and Torres Strait Islanders and to report
on any matters relating to the previous functions mentioned when directed to do
so by the Commonwealth Minister.
78. This item repeals subsection 46C(2) of the Retitled Act, consequential
on the amendment made by Item 57. The heading to section 46C is replaced by the
heading ‘Functions relating to Aboriginal persons and Torres Strait
Islanders’.
Item 60 - Subsection 46C(3)
Item 61 -
Paragraph 46C(3)(d)
Item 62 - Subsection 46C(4)Item 63 –
Division 2 of Part IIA
79. These items amend subsection 46C(3),
paragraph 46C(3)(d) and subsection 46C(4), and repeal Division 2 of Part
IIA of the Retitled Act, consequential on the amendment made by an earlier item
which removes the position of Aboriginal and Torres Strait Islander Social
Justice Commissioner. The specific position of Aboriginal and Torres Strait
Islander Social Justice Commissioner is no longer required because of the new
structure created by earlier items which change the composition of the new
Commission’s executive.
80. This item repeals the heading to Division 3 of Part IIA of the
Retitled Act. With the repeal of section 46B and Division 2, there is no
longer a need to retain a divisional structure within Part IIA.
81. These items amend sections 46K and 46L of the Retitled Act,
consequential on the amendment made by an earlier item which removes the
position of Aboriginal and Torres Strait Islander Social Justice Commissioner.
82. The heading to section 46M of the Retitled Act is altered for the
same reason.
83. This item amends paragraph 46PE(1)(c) of the Retitled Act,
consequential on the amendment made by an earlier item which changes the
composition of the new Commission. The heading to section 46PE is altered
accordingly.
84. This item inserts a note at the end of subsection 46PF(1) of the
Retitled Act to alert readers to the existence of Complaints Commissioners to
whom the President may delegate the performance of the complaint handling
functions.
85. This item inserts new section 46PNA which permits the President to
request Complaints Commissioners (who are appointed under new section 42A) to
undertake complaint handling work under section 46P. All complaints of
unlawful discrimination lodged with the Commission under section 46P must be
referred to the President under section 46PD. The President may request a
Complaints Commissioner to inquire into such a complaint and attempt to
conciliate the complaint.
86. Subsection 8(6) describes the functions
of the Commission which must be performed by the President. These include the
function under subsection 11(1)(aa) of inquiring into, and attempting to
conciliate, complaints of unlawful discrimination. Under new subsection 46PNA
the Complaints Commissioners are deemed to be the President for this purpose but
are not members of the Commission. Other functions of the Complaints
Commissioners are described in new section 19(1A) of the Retitled Act.
87. This item amends subsection 46PV(1) of the Retitled Act to omit
references to special-purpose Commissioners and to replace them with references
to Human Rights Commissioners. This ensures that the three Human Rights
Commissioners in the new Commission are responsible for performing the function
of seeking leave to appear as amicus curiae in Federal Court proceedings
under Division 2 of Part IIB of the retitled Act. The President has not
been given any role under this section in order to avoid the possibility of a
conflict of interest arising from the President’s responsibility for
investigating, and attempting to conciliate, complaints of unlawful
discrimination. The heading to section 46PV is altered accordingly.
88. This item repeals paragraph 46PV(1)(b) of the Retitled Act and
substitutes a new paragraph 46PV(1)(b). The purpose of this amendment is to
clarify the uncertainty which may exist as a result of the use of the phrase
‘relevant Act or Acts’ in the paragraph dealing with the
Commission’s function of intervening in court proceedings. The new
paragraph makes it clear that any Human Rights Commissioner may seek leave
to appear as amicus curiae in Federal Court proceedings which may, in his
or her opinion, have significant implications for the administration of any one
or more of the Acts specified in the paragraph.
89. This item repeals subsection 46PV(3) of the Retitled Act and
substitutes a new subsection 46PV(3). This is consequential on the abolition of
the positions of special-purpose Commissioners in the old Commission.
90. The new subsection requires the Human Rights Commissioners to
consult each other before exercising the function under subsection 46PV(1) of
seeking leave to appear as amicus curiae in Federal Court proceedings.
This requirement is intended to ensure that appropriate consultation takes place
between the Human Rights Commissioners in relation to this function. The
functions of the Human Rights Commissioners under subsection 46PV(1) are
intended to be performed cooperatively, and in the interests of the new
Commission as a whole. This requirement is consistent with the general
requirement, in subsection 8(2) of the Retitled Act, that the members of the
Commission must act in a way which promotes the collegiate nature of the
Commission.
91. This item, and later items, amend section 48 of the Retitled Act to
ensure that its scope is sufficiently broad to protect from civil action those
persons protected by existing section 126 of the DDA, section 45 of the RDA and
section 111 of the SDA. This is because these three sections are being repealed
by this Act (see later items) and consolidated into section 48 of the Retitled
Act.
92. This item substitutes, in subsection 48(1) of the Retitled
Act, the phrase ‘for or on behalf of the Commission or a member’ for
the phrase ‘on behalf of the Commission’. This is to ensure that
persons acting for or on behalf of a member of the Commission, as well as those
acting for or on behalf of the Commission itself, are protected against civil
action.
93. In addition, this item will clarify the uncertainty
surrounding the protection the section offers to contractors. There is some
doubt, arising from the language of the existing section, as to whether
contractors providing services to the Commission or a member are protected from
civil action. This item will clarify that contractors acting both on behalf of
the Commission or a member (for example, contractors delivering a public
anti-discrimination education campaign developed by the Commission) and for the
Commission or a member (for example, contractors providing support or
administrative services to the Commission itself) are protected by the section.
94. This item further amends existing subsection 48(1) of the Retitled Act by adding the words ‘or a member’ at the end of the subsection to ensure that persons acting for or on behalf of a member of the Commission, as opposed to acting on behalf of the Commission itself, are protected against civil action.
95. These items amend existing subsections 48(3), 49(1), (2) and (4A) of
the Retitled Act, along the same lines as an earlier item above, by adding the
words ‘for or’ after the words ‘a person acting’. This
will ensure that these subsections cover persons acting both for or on behalf of
the Commission.
96. These items amend section 49 of the Retitled Act to ensure that the
scope of the offence it creates is sufficiently broad to cover those persons
covered by existing section 127 of the DDA, section 27F of the RDA and section
112 of the SDA. This is because this Bill would repeal these three sections and
consolidate their terms into section 49 of the retitled Act.
97. These
items amend subsection 49(1), paragraph 49(1)(c) and subsection 49(2) of the
Retitled Act to ensure that the exception to the prohibition on disclosure of
private information is sufficiently wide to cover the performance of a duty
under or in connection with any law which confers power on the Commission.
Existing section 49 covers only duties under or in connection with the
HREOCA.
Part 2 - Disability Discrimination Act 1992
98. This part of Schedule 1 contains amendments to the DDA.
99. This item repeals the definition of Commission and substitutes a new
definition, consequential on the amendments made by earlier items which amend
the title of the HREOCA and the name of the Commission.
100. This item repeals the definition of ‘Commissioner’,
consequential on the amendment made by a later item which repeals Part 6 of the
DDA (relating to the position of the Disability Discrimination Commissioner).
The specific position of Disability Discrimination Commissioner is no longer
required because of the new structure created by earlier items which change the
composition of the new Commission’s executive structure.
101. This item amends the definition of ‘Convention’,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
102. This item amends the definition of ‘Covenant on Civil and
Political Rights’, consequential on the amendment made by an earlier item
which amends the title of the HREOCA.
103. This item amends the definition of ‘enactment’,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
104. This item inserts in subsection 4(1) of the DDA a definition of
‘Human Rights Commissioner’, consequential on the
amendment made by an earlier item which establishes three Human Rights
Commissioner positions.
105. This item amends the definition of ‘proposed
enactment’, consequential on the amendment made by an earlier item which
amends the title of the HREOCA.
106. This item amends subsections 13(4) and 42(2) of the DDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
107. This item replaces the heading to Part 4 of the DDA, consequential
on the amendment made by an earlier item which changes the name of the
Commission.
108. This item and the following item amend subsection 67(1) of the DDA
to make education and dissemination of information on discrimination on the
ground of disability the central focus of the new Commission’s functions,
primarily by re-ordering and enhancing the existing functions set out in
subsection 67(1). These amendments mirror those made in relation to subsection
11(1) of the Retitled Act.
109. This item inserts new paragraphs (a),
(b), (ba) and (bb) into subsection 67(1) of the DDA. Paragraphs 67(1)(a), (ba)
and (bb) broadly reflect existing paragraphs 67(1)(g), (h) and (k), with the
addition of references to the responsibility of persons and organisations to
avoid discrimination on the grounds of disability, while paragraph 67(1)(b)
confers on the new Commission a function which was not conferred on the old
Commission.
110. These amendments are intended to focus the new
Commission’s attention on the following functions:
• promoting an understanding and acceptance of, and compliance
with, the DDA (new paragraph 67(1)(a));
• disseminating information on
discrimination on the ground of disability, and on the responsibility of persons
and organisations to avoid such discrimination (new paragraph 67(1)(b));
• undertaking research and educational programs, and other programs,
on behalf of the Commonwealth, for the purpose of promoting the objects of the
DDA (new paragraph 67(1)(ba)); and
• preparing, and publishing in a
manner the new Commission considers appropriate, guidelines for avoiding
discrimination on the ground of disability (new paragraph 67(1)(bb)).
111. This item repeals paragraphs 67(1)(g), (h) and (k), consequential
on the amendments made by the item above.
This item amends paragraph 67(1)(l) of the DDA to be subject to new
subsections 67(3) and (4) of the DDA. These new subsections are created by a
later item.
112. The heading to section 67 of the DDA is also altered,
consequential on the amendment made by an earlier item which changes the name of
the Commission.
113. This item alters the note to subsection 67(1) of the DDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
114. This item qualifies paragraph 67(1)(l) of the DDA to make the
exercise by the new Commission of its function of seeking leave to intervene in
court proceedings which involve human rights issues conditional on:
• the Attorney-General first having given approval in accordance with new subsection 67(3) unless new subsection 67(4) applies; or
• if the President of the new Commission is, or was immediately before
appointment as President, a federal Judge (subsection (4)) - to require the
Commission to notify the Attorney-General of its intention to seek leave to
intervene in court proceedings and its reasons for doing so. The notice must be
given when there is still a reasonable period before the Commission seeks leave
to intervene in the court proceedings.
As First Law Officer of the
Commonwealth the Attorney-General has a general public interest role in
litigation, including human rights litigation. When the new Commission is given
leave to intervene in court proceedings, it will effectively become a party to
those proceedings, advocating and/or defending a particular legal position, or a
particular interpretation of any legislation in issue in the proceedings.
Requiring the new Commission to seek the Attorney-General’s approval for
such an intervention before the new Commission exercises its function to seek
leave to intervene will ensure that the intervention function is only exercised
after the broader interests of the community have been taken into
account.
115. In deciding whether to approve the exercise by the new
Commission of its power to seek leave to intervene in court proceedings the
Attorney-General may have regard to a range of matters set out in subsection
(3). The inclusion of these matters in subsection (3) is not in any way
intended to limit the range of matters to which the Attorney-General may have
regard in making his or her decision, nor is it intended that the
Attorney-General be required to consider any of these matters.
116. In
this new section, the matters to which the Attorney-General may have regard are
as follows:
• whether there has been an intervention in the
proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the Australian Human
Rights Commission Act 1986, the DDA, the RDA or the SDA;
• whether, in the Attorney-General’s opinion, there are special
circumstances such that it would be in the public interest for the new
Commission to intervene.
117. The requirement for the new Commission to
notify the Attorney-General of its intention to seek leave to intervene in court
proceedings and its reasons for doing so, but not requiring the
Attorney-General’s formal approval of this function, when the President
is, or was immediately before appointment as President, a federal Judge ensures
that there are no constitutional issues arising from the appointment of a
federal Judge as President.
118. This item repeals Part 6 of the DDA, which provides for the
appointment, and terms and conditions, of the Disability Discrimination
Commissioner. The specific position of Disability Discrimination Commissioner
is no longer required because of the new structure created by earlier items
which change the composition of the new Commission’s executive.
119. This item repeals:
• section 121 of the DDA,
consequential on the amendment made by an earlier item which amends section 19
of the Retitled Act to ensure that the new Commission can delegate its powers
under any law which confers powers on the new Commission;
• section
126 of the DDA, consequential on the amendments made by earlier items which
amend section 48 of the Retitled Act to ensure that its scope is sufficiently
broad to protect from civil action those persons protected by existing section
126 of the DDA;
• section 127 of the DDA, consequential on the
amendments made by earlier items which amend section 49 of the Retitled Act to
ensure that the scope of the offence it creates is sufficiently broad to cover
those persons covered by existing section 127 of the DDA; and
• section 129 of the DDA, consequential on the amendment made by an
earlier item which repeals Part 6 of the DDA (relating to the position of the
Disability Discrimination Commissioner).
Part 3 - Privacy Act 1988
120. This part of Schedule 1 contains amendments to the Privacy Act
1988 (‘Privacy Act’), consequential on the amendments made by
Part 1 of Schedule 1.
121. This item amends the preamble to the Privacy Act, consequential on
the amendment made by an earlier item which amends the title of the HREOCA.
122. This item amends paragraph 36(4)(a) of the Privacy Act
consequential on the amendment made by an earlier item which changes the name of
the Commission.
123. This item repeals the definition of ‘Human Rights and Equal
Opportunity Commission’, consequential on the amendment made by an earlier
item which changes the name of the Commission. This is replaced by a definition
in the item below.
124. This item inserts a definition of ‘Australian Human Rights
Commission’ in subsection 50(1) of the Privacy Act, which is defined to
include a person performing functions of that Commission. This replaces the
definition repealed by the item above.
125. This item amends subsection 50(2) of the Privacy Act, consequential
on the amendment made by an earlier item which changes the name of the
Commission.
126. This item amends subparagraphs 50(2)(a)(i) and (3)(a)(i) of the
Privacy Act, consequential on the amendment made by an earlier item which amends
the title of the HREOCA.
127. This item amends subparagraph 50(3)(a)(i) of the Privacy Act,
consequential on the amendment made by an earlier item which changes the name of
the Commission.
Part 4 - Racial Discrimination Act 1975
128. This part of Schedule 1 contains amendments to the RDA.
129. This item repeals the definition of ‘Chairman’,
consequential on the amendment made by a later item which repeals Part V
(relating to the establishment and functions of the Community Relations Council)
of the RDA.
130. This item repeals the definition of ‘Commission’ and
substitutes a new definition, consequential on the amendments made by earlier
items which amend the title of the HREOCA and change the name of the Commission.
131. This item repeals the definition of ‘Commissioner’,
consequential on the amendment made by a later item which removes the position
of Race Discrimination Commissioner. The specific position of Race
Discrimination Commissioner is no longer required because of the new structure
created by earlier items which change the composition of the new
Commission’s executive.
132. This item repeals the definition of ‘conciliation
committee’, which is no longer needed. The substantive provisions which
made use of the definition were repealed by an earlier Act, and the failure to
repeal the definition was merely an omission.
133. This item repeals the definition of ‘Council’,
consequential on the amendment made by a later item which repeals Part V
(relating to the establishment and functions of the Community Relations Council)
of the RDA.
134. This item repeals the definition of ‘Deputy Chairman’,
consequential on the amendment made by a later item which repeals Part V
(relating to the establishment and functions of the Community Relations Council)
of the RDA.
135. This item inserts in subsection 3(1) of the RDA a definition of
‘Human Rights Commissioner’, consequential on the
amendment made by an earlier item which changes the composition of the
Commission.
136. This item repeals the definition of ‘member’,
consequential on the amendment made by a later item which repeals Part V
(relating to the establishment and functions of the Community Relations Council)
of the RDA.
137. This item amends subsection 6A(2) of the RDA, consequential on the
amendment made by an earlier item which amends the title of the HREOCA.
151. This item amends the note following subsection 18C(1) of the RDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
152. This item amends the note following subsection 18C(1) of the RDA,
consequential on the amendment made by an earlier item which changes the name of
the Commission.
138. This item alters the heading to Part III of the RDA, consequential
on the amendment made by the item below.
139. This item repeals section 19 of the RDA, which establishes the
position of Race Discrimination Commissioner.
140. This item re-letters paragraph 20(1)(b) as paragraph (a). This is
because HRLAA (No 1) repealed the previous paragraph 20(1)(a).
141. This item inserts into section 20 of the RDA a new paragraph (b),
which will confer on the new Commission the function of disseminating
information on racial discrimination, and on the responsibility of persons and
organisations to avoid such discrimination.
142. Together, this and
the previous item are intended to focus the new Commission’s attention on
the following functions:
• promoting an understanding and
acceptance of, and compliance with, the RDA (new paragraph 20(1)(a));
• disseminating information on racial discrimination, and on the
responsibility of persons and organisations to avoid such discrimination (new
paragraph 20(1)(b));
• developing, conducting and fostering research
and educational programs and other programs for various purposes under the RDA
(existing paragraph 20(1)(c); and
• preparing, and publishing in a
manner the new Commission considers appropriate, guidelines for avoiding racial
discrimination (existing paragraph 20(1)(d)).
143. This item amends paragraph 20(1)(e) of the RDA to be subject to new
subsections 20(2) and (3) of the RDA. These new subsections are created by a
later item.
144. This item amends paragraph 20(1)(f) of the RDA. This is
consequential on the amendment made by an earlier item which removes the
specific position of Race Discrimination Commissioner. The position is no
longer required because of the new structure created by earlier items which
change the composition of the new Commission’s executive.
145. This item alters the note following section 20 of the RDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
146. This item qualifies paragraph 20(1)(e) of the RDA to make the
exercise by the new Commission of its function of seeking leave to intervene in
court proceedings which involve human rights issues conditional on:
• the Attorney-General first having given approval in accordance with new subsection 20(2) unless new subsection (3) applies; or
• if the President of the new Commission is, or was immediately before
appointment as President, a federal Judge (subsection (3)) - to require the
Commission to notify the Attorney-General of its intention to seek leave to
intervene in court proceedings and its reasons for doing so. The notice must be
given when there is still a reasonable period before the Commission seeks leave
to intervene in the court proceedings.
147. As First Law Officer of the
Commonwealth the Attorney-General has a general public interest role in
litigation, including human rights litigation. When the new Commission is given
leave to intervene in court proceedings, it will effectively become a party to
those proceedings, advocating and/or defending a particular legal position, or a
particular interpretation of any legislation in issue in the proceedings.
Requiring the new Commission to seek the Attorney-General’s approval for
such an intervention before the new Commission exercises its function to seek
leave to intervene will ensure that the intervention function is only exercised
after the broader interests of the community have been taken into
account.
148. In deciding whether to approve the exercise by the new
Commission of its power to seek leave to intervene in court proceedings the
Attorney-General may have regard to a range of matters set out in subsection
(2). The inclusion of these matters in subsection (2) is not in any way
intended to limit the range of matters to which the Attorney-General may have
regard in making his or her decision, nor is it intended that the
Attorney-General be required to consider any of these matters.
149. In
this new section, the matters to which the Attorney-General may have regard are
as follows:
• whether there has been an intervention in the
proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the Australian Human
Rights Commission Act 1986, the DDA, the RDA or the SDA;
• whether, in the Attorney-General’s opinion, there are special
circumstances such that it would be in the public interest for the new
Commission to intervene.
The requirement for the new Commission to notify
the Attorney-General of its intention to seek leave to intervene in court
proceedings and its reasons for doing so, but not requiring the
Attorney-General’s formal approval of this function, when the President
is, or was immediately before appointment as President, a federal Judge ensures
that there are no constitutional issues arising from the appointment of a
federal Judge as President.
150. This item amends paragraphs 27(2)(e), (f) and (g) of the RDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
151. This item repeals section 27F of the RDA, consequential on the
amendments made by earlier items. These items amend section 49 of the Retitled
Act to ensure that the scope of the offence it creates is sufficiently broad to
cover those persons covered by existing section 27F of the RDA.
152. This item repeals Parts V and VI of the RDA. Part V provides for
the establishment and functions of the Community Relations Council. Part VI
provides for the appointment, and terms and conditions, of the Race
Discrimination Commissioner and the members of the
Community Relations Council, as well as administrative provisions
relating to both. The effect of the amendment is to remove both the Community
Relations Council and the specific position of Race Discrimination Commissioner.
The specific position of Race Discrimination Commissioner is no longer required
because of the new structure created by earlier items which change the
composition of the new Commission’s executive.
153. No members
have ever been appointed to the Community Relations Council, although some of
its functions (for example, providing advice to the Commissioner for Community
Relations - the predecessor of the Race Discrimination Commissioner - on the
promotion of understanding, tolerance and friendship among racial and ethnic
groups) were in the past performed by voluntary committees established on an ad
hoc basis by the Commissioner. The new Commission will retain the power -
currently in section 15 of the HREOCA - to work with and consult appropriate
persons, governmental organisations and non-governmental organisations.
154. This item repeals section 45 of the RDA, consequential on the
amendments made by earlier items which amend section 48 of the Retitled Act to
ensure that its scope is sufficiently broad to protect from civil action those
persons protected by section 45 of the RDA.
155. This section also
repeals section 45A of the RDA, consequential on the amendment made by an
earlier item which removes the specific position of Race Discrimination
Commissioner, which is no longer required because of the new structure created
by earlier items which change the composition of the new Commission’s
executive.
156. This item amends section 47 of the RDA, consequential on the
amendment made by an earlier item which repeals the definition of
‘conciliation committee’ which is no longer needed as the
substantive provisions making use of that definition have already been repealed.
Part 5 - Sex Discrimination Act 1984
157. This part of Schedule 1 contains amendments to the SDA.
158. This item repeals the definition of ‘Commission’ and
substitutes a new definition, consequential on the amendments made by earlier
items which amend the title of the HREOCA and change the name of the
Commission.
159. This item repeals the definition of ‘Commissioner’,
consequential on the amendment made by a later item which removes the position
of Sex Discrimination Commissioner. The specific position of Sex Discrimination
Commissioner is no longer required because of the new structure created by
earlier items which change the composition of the new Commission’s
executive.
160. This item amends the definition of ‘enactment’,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
161. This item inserts in subsection 4(1) of the RDA a definition of
‘Human Rights Commissioner’, consequential on the amendment made by
an earlier item which changes the composition of the new Commission’s
executive structure.
162. This item amends the definition of ‘proposed
enactment’, consequential on the amendment made by an earlier item which
amends the title of the HREOCA.
163. This item amends subsections 10(4) and 11(4) of the SDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
164. This item replaces the heading to Part III of the SDA,
consequential on the amendment made by an earlier item which changes the name of
the Commission.
165. This item and the following item amend subsection 48(1) of the SDA
to make education and dissemination of information on the various forms of
discrimination made unlawful by the SDA a key focus of the new
Commission’s functions, primarily by re-ordering and enhancing the
existing functions set out in subsection 48(1). These amendments mirror those
made by earlier items in relation to subsection 11(1) of the Retitled Act.
166. This item inserts new paragraphs (a), (b), (ba) and (bb) into
subsection 48(1) of the SDA. Paragraphs 48(1)(a), (ba) and (bb) broadly reflect
existing paragraphs 48(1)(d), (e) and (ga), with the addition of references to
the responsibility of persons and organisations to avoid the various forms of
discrimination made unlawful by the SDA, while paragraph 48(1)(b) confers on the
new Commission a function which was not conferred on the old Commission.
167. These amendments are intended to focus the new Commission’s
attention on the following functions:
• promoting an
understanding and acceptance of, and compliance with, the SDA (new paragraph
48(1)(a));
• disseminating information on discrimination on the
grounds of sex, marital status, pregnancy or potential pregnancy, and
discrimination involving sexual harassment, and on the responsibility of persons
and organisations to avoid such discrimination (new paragraph 48(1)(b));
• undertaking research and educational programs, and other programs,
on behalf of the Commonwealth, for the purpose of promoting the objects of the
SDA (new paragraph 48(1)(ba)); and
• preparing, and publishing in a
manner the new Commission considers appropriate, guidelines for avoiding the
various forms of discrimination made unlawful by the SDA (new paragraph
48(1)(bb)).
168. This item repeals paragraphs 48(1)(d), (e) and (ga), consequential
on the amendments made by the item above.
169. This item amends paragraph 48(1)(gb) of the SDA to be subject to
new subsections 48(3) and (4) of the SDA. These new subsections are created by
a later item.
170. This item alters the note to subsection 48(1) of the SDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
171. The heading to section 48 of the SDA is also altered,
consequential on the amendment made by an earlier item which changes the name of
the Commission.
172. This item qualifies paragraph 48(1)(gb) of the SDA to make the
exercise by the new Commission of its function of seeking leave to intervene in
court proceedings which involve human rights issues conditional on:
• the Attorney-General first having given approval in accordance with new subsection 48(3) unless new subsection (4) applies; or
• if the President of the new Commission is, or was immediately before
appointment as President, a federal Judge (subsection (4)) - to require the
Commission to notify the Attorney-General of its intention to seek leave to
intervene in court proceedings and its reasons for doing so. The notice must be
given when there is still a reasonable period before the Commission seeks leave
to intervene in the court proceedings.
173. As First Law Officer of the
Commonwealth the Attorney-General has a general public interest role in
litigation, including human rights litigation. When the new Commission is given
leave to intervene in court proceedings, it will effectively become a party to
those proceedings, advocating and/or defending a particular legal position, or a
particular interpretation of any legislation in issue in the proceedings.
Requiring the new Commission to seek the Attorney-General’s approval for
such an intervention before the new Commission exercises its function to seek
leave to intervene will ensure that the intervention function is only exercised
after the broader interests of the community have been taken into
account.
174. In deciding whether to approve the exercise by the new
Commission of its power to seek leave to intervene in court proceedings the
Attorney-General may have regard to a range of matters set out in subsection
(3). The inclusion of these matters in subsection (3) is not in any way
intended to limit the range of matters to which the Attorney-General may have
regard in making his or her decision, nor is it intended that the
Attorney-General be required to consider any of these matters.
175. In
this new section, the matters to which the Attorney-General may have regard are
as follows:
• whether there has been an intervention in the
proceedings by or on behalf of the Commonwealth;
• whether, in the
Attorney-General’s opinion, the proceedings may affect to a significant
extent the human rights of, or involve to a significant extent issues of
discrimination against, persons who are not parties to the proceedings;
• whether, in the Attorney-General’s opinion, the proceedings
have significant implications for the administration of the Australian Human
Rights Commission Act 1986, the DDA, the RDA or the SDA;
• whether, in the Attorney-General’s opinion, there are special
circumstances such that it would be in the public interest for the new
Commission to intervene.
176. The requirement for the new Commission to
notify the Attorney-General of its intention to seek leave to intervene in court
proceedings and its reasons for doing so, but not requiring the
Attorney-General’s formal approval of this function, when the President
is, or was immediately before appointment as President, a federal Judge ensures
that there are no constitutional issues arising from the appointment of a
federal Judge as President.
177. These items amend subsection 92(1), 92(2)(b) and 94(2) of the SDA,
consequential on the amendment made by an earlier item which amends the title of
the HREOCA.
178. This item repeals Part V of the SDA, which provides for the
appointment, and terms and conditions, of the Sex Discrimination Commissioner.
The specific position of Sex Discrimination Commissioner is no longer required
because of the new structure created by earlier items which change the
composition of the new Commission’s executive.
179. This item repeals:
• section 104 of the SDA,
consequential on the amendment made by an earlier item which amends section 19
of the Retitled Act to ensure that the new Commission can delegate its powers
under any law which confers powers on the new Commission;
• section
111 of the SDA, consequential on the amendments made by earlier items which
amend section 48 of the Retitled Act to ensure that its scope is sufficiently
broad to protect from civil action those persons protected by existing section
111 of the SDA;
• section 112 of the SDA, consequential on the
amendments made by earlier items which amend section 49 of the Retitled Act to
ensure that the scope of the offence it creates is sufficiently broad to cover
those persons covered by existing section 112 of the SDA;
• section
114 of the SDA, consequential on the amendment made by an earlier item which
repeals Part V of the SDA (which provides for the appointment, and terms and
conditions, of the Sex Discrimination Commissioner).
Part 6 - Application and transitional
180. This part of Schedule 1 contains a number of provisions which deal
with arrangements for the transition from the old Commission to the new
Commission.
181. This item provides that, to avoid doubt, neither the continuity of
the Commission’s existence nor the continuity of the appointment of the
President or the Human Rights Commissioner are affected by the change to the
Commission’s name, or any other amendment, made by this Act.
182. This item ensures the preservation of the benefits of a part-time
President who is appointed full-time after its commencement (‘the
transition time’).
183. This item provides that if a person, who
was a part-time President of the old Commission immediately before the
transition time, ceases to be appointed as a part-time President and is
re-appointed as a full-time President, that person is taken to have accrued an
entitlement to benefits, in connection with the re-appointment, which is
equivalent to the entitlement which he or she had accrued as a part-time
President as at the transition time. This item ensures that a part-time
President in the old Commission who is re-appointed as a full-time President in
the new Commission is treated, for the purpose of calculating entitlements to
benefits (for example, superannuation and leave), as if he or she had served
continuously, without a break in his or her appointment.
184. This item provides that the persons who were the Commissioners of
the old Commission at the commencement of this item become Human Rights
Commissioners of the new Commission, provided that at that time there are no
more than three such Commissioners. Each such person holds office as Human
Rights Commissioner for a period equivalent to the remaining period of the
person’s appointment as a Commissioner of the old Commission but the
person is eligible for reappointment. Each such person is taken to have accrued
an entitlement to benefits, as a new Human Rights Commissioner, that is
equivalent to the entitlements that the person had accrued as a Commissioner
immediately before the transition time.
185. Subitem (1) provides that delegations made by the old Commission,
before the transition time, under section 121 of the DDA, section 40 of the RDA
and section 104 of the SDA (which are repealed by earlier items), remain in
force after the repeal of those sections as if the repeal had not happened.
This is to ensure that the new Commission does not unnecessarily have to
re-execute instruments of delegation made by the old Commission, and that such
delegations can continue in force unchanged.
186. Subitem (2) excludes
from the operation of subitem (1) any delegations made by or to the
special-purpose Commissioners whose positions are removed by this Act. These
delegations will cease to have any effect.
187. Subitem (3) makes clear
that any delegations to the special-purpose Human Rights Commissioner
appointed under the HREOCA in force immediately before the commencement of this
item are, under subitem (2), excluded from the operation of subitem (1).
188. This item ensures that the repealed civil liability protection
provisions (section 126 of the DDA, section 45 of the RDA and section 111
of the SDA), and section 48 of the existing HREOCA in its unamended form,
continue to apply to actions taken prior to the transition time. This item
provides that although the provisions of the DDA, the RDA and the SDA are
repealed, and section 48 of the HREOCA is amended, those sections continue to
apply as if they had not been repealed or amended (as the case may be).
189. This item ensures that the repealed non-disclosure provisions
(section 127 of the DDA, section 27F of the RDA and section 112 of the SDA)
continue to apply to certain people as if they had not been repealed. This item
provides that, although the sections are repealed by Schedule 1 to this Act,
they continue to apply, in relation to information a person acquired before the
repeal, or documents a person had before the repeal, as if the repeal had not
happened. Thus, the obligations of non-disclosure, along with the offences which
provide the sanction for non-compliance with those obligations, continue to
apply in relation to information and documents acquired before the transition
time.
Part 1 - References to the Human Rights and Equal Opportunity Commission Act 1986
190. This part of Schedule 2 contains amendments of provisions in other
Acts to alter references to the HREOCA, consequential on the amendment made by
an earlier item in Schedule 1 which amends the title of the HREOCA.
191. The following provisions are amended:
• subsection 3(1)
of the Crimes (Torture) Act 1988;
• the Dictionary in the
Criminal Code Act 1995;
• subsection 58HA(1) and section 58HB of
the Defence Act 1903;
• subsection 138(3) of the Evidence
Act 1995;
• the Preamble to the Housing Assistance Act
1996;
• subsection 4(1) of the Human Rights (Sexual Conduct)
Act 1994;
• subsection 3(1) of the Inspector-General of
Intelligence and Security Act 1986;
• paragraph 193(3)(a) of the
Migration Act 1958;
• subsection 8B(1) and section 8C of the
Remuneration Tribunal Act 1973;
• the Preamble to the
Supported Accommodation Assistance Act 1994; and
• section 113,
subsections 4(1) and 111A(1), and paragraphs 45(1)(ed) and 170CK(1)(a) of the
Workplace Relations Act 1996.
Part 2 - Other amendments
192. This part of Schedule 2 contains a number of other amendments
consequential on the amendments made in Schedule 1.
Defence Act
1903
193. This item amends subsection 58HA(5) of the Defence Act 1903,
consequential on the amendment made by earlier items in Schedule 1 which changes
the composition of the new Commission’s executive structure and removes
the specific position of Sex Discrimination Commissioner, which is no longer
required as a result of the new structure.
Inspector-General of
Intelligence and Security Act 1986
194. This item amends subparagraphs 8(1)(a)(v), (2)(a)(iv) and (3)(b)(i)
of the Inspector-General of Intelligence and Security Act 1986,
consequential on the amendment made by an earlier item in Schedule 1 which
changes the name of the Commission.
Migration Act
1958
195. This item amends paragraph 193(3)(a) of the Migration Act
1958, consequential on the amendment made by an earlier item in Schedule 1
which changes the name of the Commission.
Native Title Act 1993
196. The Preamble, as it was originally made, has historical importance
so the reference in it to the HREOCA has not been amended. However, this item
inserts a note at the end of the Preamble explaining that the HREOCA has been
renamed the Australian Human Rights Commission Act 1986.
197. Subsection 209(1) of the Native Title Act 1993 (NTA) provides
for an annual report to the Commonwealth Minister on the operation of the NTA
and its effect on the exercise and enjoyment of human rights of Aboriginal
peoples and Torres Strait Islanders.
198. This item amends subsection
209(1) of the NTA to confer the reporting function on the new Commission, rather
than on the Aboriginal and Torres Strait Islander Social Justice Commissioner,
as the position of Aboriginal and Torres Strait Islander Social Justice
Commissioner is removed by an earlier item in Schedule 1.
199. The
heading to section 209 is also altered accordingly.
200. This item amends subsection 209(2) of the NTA, consequential on the
amendment made by the item above.
201. This item amends section 209 of the NTA to add a new subsection (3).
The new subsection imposes on the Commonwealth Minister an obligation to table
before each House of Parliament a report which he or she receives from the
Australian Human Rights Commission under subsection 209(1) or (2). The report
must be tabled within 15 sitting days after the date on which the Commonwealth
Minister receives the report. This is consistent with the current obligation
under the HREOCA for the Minister to table within 15 sitting days after the date
on which the Minister receives them, reports furnished to him by the Commission
under section 46 of that Act (except reports tabled under subsection 29(5) which
are reports of any matters that the Commission has excluded from another
report). This section 46 obligation will continue under the Retitled
Act.
Remuneration and Allowances Act 1990
202. This item repeals the table item relating to the Human Rights
Commissioner in Part 3 of Schedule 2 to the Remuneration and Allowances Act
1990, consequential on the amendment made by a Schedule 1 item to remove the
specific position of Human Rights Commissioner provided for by section
8B of the HREOCA as in force immediately before the commencement of the
Australian Human Rights Commission Legislation Act 1986.
Remuneration Tribunal Act 1973
203. This item amends subsection 8B(5) of the Remuneration Tribunal
Act 1973, consequential on the amendment made by earlier items in Schedule 1
which change the composition of the Commission and remove the position of Sex
Discrimination Commissioner because it is no longer required as a result of the
new Commission’s executive structure.
Workplace Relations Act
1996
204. This item amends paragraph 111A(2)(b) of the Workplace Relations
Act 1996, consequential on the amendment made by earlier items in Schedule 1
which change the composition of the Commission and remove the position of Sex
Discrimination Commissioner because it is no longer required as a result of the
new Commission’s executive structure.
205. This item amends paragraph 170BD(b) of the Workplace Relations
Act 1996, consequential on the amendment made by earlier items in Schedule 1
which change the composition of the Commission and remove the position of Sex
Discrimination Commissioner because it is no longer required as a result of the
new Commission’s executive structure.