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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to refine and strengthen the legal and regulatory
frameworks relating to sexual harassment and discrimination in Australia.
This bill seeks to amend the:
The bill would also make consequential amendments to the:
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 27 September 2022
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Bill status
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Passed both Houses
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Broad discretionary power[1]
2.2 The Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Age Discrimination Act 2004 (the anti-discrimination Acts) currently provide that it is a criminal offence to commit an act of victimisation against another person.[2] Part 1 of Schedule 7 to the bill seeks to insert new civil victimisation provisions into each of the anti-discrimination Acts,[3] and make consequential amendments to the definition of 'unlawful discrimination' in the Australian Human Rights Commission Act 1986 (the AHRC Act).[4] The practical effect of these amendments is that victimising conduct could form the basis of civil or criminal proceedings, or both.
2.3 Items 17 and 18 of Schedule 7 to the bill provide application and transitional arrangements in relation to the proposed civil victimisation provisions. Item 17 provides that the proposed civil victimisation provisions would be retrospective in operation. While the existing definition of 'unlawful discrimination' would continue to apply in relation to complaints concerning victimising conduct engaged in prior to commencement of the bill, the President of the Australian Human Rights Commission (AHRC) would have a broad discretion to deal with complaints of victimisation lodged with the AHRC prior to commencement as if they were complaints lodged in relation to the proposed civil victimisation provisions.[5]
2.4 In Scrutiny Digest 7 of 2022 the committee requested the Attorney-General's advice as to:
• why it is necessary and appropriate to apply the proposed civil victimisation provisions to acts of victimisation that occurred prior to the commencement of the bill;
• the extent to which individuals are expected to be affected by the retrospective application of the bill, including whether any court proceedings which have already been instituted are likely to be affected;
• why it is necessary and appropriate to provide the President with a broad discretion to deal with complaints concerning conduct that occurred prior to the commencement of the bill on the basis of the new civil victimisation provisions; and
• whether the bill can be amended to include at least high-level guidance regarding the exercise of the President's discretion or, at a minimum, whether the explanatory memorandum can be updated to include this guidance.[6]
Attorney-General's response[7]
2.5 The Attorney-General advised that the proposed civil victimisation provisions are intended to clarify judicial uncertainty arising from court cases in the past decade which have questioned whether federal courts have jurisdiction to hear a civil application of 'unlawful discrimination' under the AHRC Act relating to victimisation.
2.6 The Attorney-General also advised that retrospectivity is appropriate because it is restoring the law to its original intention. The Attorney-General advised that the President's discretion to deal with complaints concerning conduct that occurred prior to the commencement of the bill on the basis of the new civil victimisation provisions is needed to ensure that the AHRC can effectively deal with complaints. The Attorney‑General further advised that individuals would not be adversely affected by these amendments.
Committee comment
2.7 The committee thanks the Attorney-General for this response. However, the committee notes that the Attorney-General's advice largely restates the information contained in the explanatory memorandum which the committee considered at length in Scrutiny Digest 7 of 2022.
2.8 The committee notes the Attorney-General's advice that retrospectivity is appropriate because it is restoring the law to its original intention and will clarify judicial uncertainty. However, the committee reiterates that while the intention of the bill may be to restore the position of the law to that which was intended when the original anti-discrimination Acts were made, from a rule of law perspective, individuals and entities should not be required to comply with laws that were not properly made. Any departure from this position must be comprehensively justified.
2.9 The committee notes that the Attorney-General's response did not address the extent to which individuals are expected to be affected by the retrospective application of the bill, other than to state that they would not be adversely affected. The committee notes that it would have been helpful if the advice provided by the Attorney-General had addressed whether any court proceedings which have already been instituted are likely to be affected, rather than merely stating that individuals would not be adversely impacted.
2.10 The committee also notes the Attorney-General's advice that the President's discretion to deal with complaints concerning conduct that occurred prior to the commencement of the bill on the basis of the new civil victimisation provisions is needed to ensure that the AHRC can effectively deal with complaints. However, it is unclear to the committee from this explanation why guidance as to circumstances in which it may be appropriate to exercise this discretion cannot be included in relation to the President's discretionary powers in item 18.
2.11 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.
2.12 Part 1 of Schedule 2 to the bill introduces a positive duty in the Sex Discrimination Act 1984 for employers and persons conducting a business or undertaking to take measures to eliminate certain discriminatory conduct. Item 23 of Schedule 2 amends the AHRC Act to provide the AHRC with broad powers to monitor and assess compliance with this new positive duty.[9] Under existing subsection 19(2) of the AHRC Act, the President of the AHRC would be able to delegate the majority of these powers to another member of the AHRC, a member of the staff of the AHRC or any other person. Proposed subsection 19(2C) would limit delegation of the powers to issue, reconsider and enforce compliance notices to members of the Senior Executive Service and Executive Level 2 employees of the AHRC.
2.13 In Scrutiny Digest 7 of 2022 the committee requested the Attorney-General's advice as to:
• why it is necessary and appropriate to allow the President to delegate powers under proposed sections 35B–35E and 35H to another member of the AHRC, a member of the staff of the AHRC or any other person; and
• whether the bill can be amended to provide legislative guidance as to the scope of powers that might be delegated, or to further limit the categories of people to whom those powers might be delegated.[10]
Attorney-General's response[11]
2.14 The Attorney-General advised that the AHRC has a diverse range of functions, including new inquiry functions in proposed sections 35B–35E relating to the positive duty for employers and persons conducting a business or undertaking to take measures to eliminate certain discriminatory conduct. The Attorney-General advised that it is therefore necessary to delegate functions to a wide range of staff in order to ensure the AHRC functions effectively. The Attorney-General further advised that the delegation of the AHRC's functions under section 19 of the AHRC Act is an established practice and that the measures in the bill are consistent with existing procedures.
2.15 Finally, the Attorney-General noted that proposed subsection 19(2C) limits the delegation of certain powers regarding compliance notices in sections 35F, 35G and 35J to members of the Senior Executive Service and Executive Level 2 employees of the AHRC.
Committee comment
2.16 The committee thanks the Attorney-General for this response. However, the committee notes that the Attorney-General's advice largely restates the information contained in the explanatory memorandum which the committee considered at length in Scrutiny Digest 7 of 2022.
2.17 The committee notes the Attorney-General's advice that the broad delegation of the President's powers and functions under section 19 of the AHRC Act is an established practice. The committee reiterates its consistent scrutiny view that consistency with existing legislation is not sufficient justification for allowing the broad delegation of administrative powers and functions.
2.18 The committee also notes that the Attorney-General's response does not address whether the bill can be amended to provide legislative guidance as to the scope of powers that might be delegated, or to further limit the categories of people to whom those powers might be delegated. It is unclear to the committee why it would not be possible to include further guidance or limitations.
2.19 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.
2.20 Schedule 3 to the bill seeks to amend the AHRC Act to confer a new inquiry function on the AHRC to enable it to inquire into, and report on, issues of systemic unlawful discrimination. Proposed subsection 35Q(1) provides that the AHRC may report to the minister or publish a report at the conclusion of an inquiry into systemic unlawful discrimination, or both. Item 10 of Schedule 3 amends section 46 of the AHRC Act so that any reports provided to the minister under proposed subsection 35Q(1) would not have to be tabled in the Parliament.
2.21 In Scrutiny Digest 7 of 2022 the committee requested the Attorney-General's advice as to why reports prepared for the minister under proposed subsection 35Q(1) are not required to be tabled in the Parliament.[13]
Attorney-General's response[14]
2.22 The Attorney-General advised that a report prepared under proposed subsection 35Q(1) may identify recommendations for a range of actors to implement. The Attorney-General advised that providing the AHRC with discretion to publish reports as it sees fit, rather than requiring that reports be tabled in the Parliament, ensures that it has the necessary flexibility to consider the contextual circumstances of an inquiry. The Attorney-General also advised that publication of these reports, where the AHRC chooses to do so, may promote greater transparency and understanding of systemic discrimination, both for employers and the broader community.
Committee comment
2.23 The committee thanks the Attorney-General for this response.
2.24 The committee notes the Attorney-General's advice that the publication of reports prepared under proposed subsection 35Q(1) may promote greater transparency and understanding of systemic discrimination. The committee also notes the Attorney-General's advice that, as a report prepared under proposed subsection 35Q(1) may identify recommendations for a range of actors to implement, it is therefore appropriate to provide the AHRC with discretion as to whether these reports are published.
2.25 While noting this advice, the committee reiterates its consistent scrutiny view that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online. The committee does not consider the Attorney-General's advice has adequately justified why reports prepared under subsection 35Q(1) cannot be required to be tabled in the Parliament, subject to any redactions genuinely required to ensure that sensitive information is not inappropriately disclosed.
2.26 As the bill has already passed both Houses of the Parliament, the committee makes no further comment on this matter.
[1] Schedule 7, Part 2, items 17 and 18. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).
[2] See section 42 of the Disability Discrimination Act 1992; subsection 27(2) of the Racial Discrimination Act 1975; and section 51 of the Age Discrimination Act 2004.
[3] Proposed section 47A of the Disability Discrimination Act 1992; proposed section 58A of the Racial Discrimination Act 1975; and proposed section 18AA of the Age Discrimination Act 2004.
[4] 'Unlawful discrimination' is defined in subsection 3(1) of the AHRC Act. Individuals may lodge a complaint of 'unlawful discrimination' with the Australian Human Rights Commission under section 46P of the AHRC Act.
[5] Item 18.
[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022, pp. 4–7.
[7] The minister responded to the committee's comments in a letter dated 24 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
[8] Schedule 2, Part 2, Division 2, item 23. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[9] Item 23 provides that Division 2 of Part 2 of Schedule 2 to the bill commences 12 months after Royal Assent.
[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022, pp. 7–9.
[11] The minister responded to the committee's comments in a letter dated 24 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
[12] Sch 3, item 10, proposed section 46. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).
[13] Senate Scrutiny of Bills Committee, Scrutiny Digest 7 of 2022, p. 9.
[14] The minister responded to the committee's comments in a letter dated 24 November 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
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