The major objection which Australian Lawyers for Human Rights has to the Bill is with the provisions relating to the interventions power of the Human Rights and Responsibilities Commission (“the Commission”) in Schedule 1 to the Bill, clauses 21-22 and 33-34 (regarding the Human Rights and Equal Opportunity Commission Act 1986) (“the HREOCA”), clauses 80 and 82 (regarding the Disability Discrimination Act 1992), clauses 106 and 109 (regarding the Racial Discrimination Act 1975), and clauses 125 and 127 (regarding the Sex Discrimination Act 1984).

We understand the proposed amendments to restrict the interventions power of the Commission to cases where the Attorney-General has approved the intervention, and that the Attorney-General may take into account various specified matters in deciding whether to grant approval.

ALHR regards the proposed amendments to be an unacceptable interference by the Government with the independence of the Commission, and one which will greatly reduce its effectiveness.

Experience has shown that the Commission’s interventions power is commonly exercised in proceedings in which the Commonwealth is a party.  This alone creates a conflict of interest on the part of the Commonwealth, which – through the Attorney-General under the proposed provisions – would have an absolute veto over whether the Commission could intervene in such proceedings.

It is also inevitable that the Commonwealth’s focus in a given piece of litigation will not always coincide with that of the Commission.  For example, in an employment dispute, the Commonwealth’s focus may be on the terms of the contract of employment while the Commission’s focus may be on issues within its mandate under HREOCA, such as those arising under the International Labour Organisation Convention 111 relating to discrimination in employment.

It is our submission essential that a court be given the benefit of hearing all relevant aspects of a dispute, and this would not be possible if one of the interested parties has a power to prevent certain aspects being brought before it.

The restrictions upon the interventions power are also arguably in breach of the letter and the spirit of various international pronouncements which have emphasised the importance of independent national human rights institutions, including General Assembly Resolution A/RES/48/134 of 20 December 1993 on National Institutions for the Promotion and Protection of Human Rights, and the Principles relating to the Status of National Institutions Competence and Responsibilities - the Paris Principles. It is somewhat ironic in our view that Australia is promoting these principles on an international level while seeking to water them down on a domestic level.

At present, the Commission may, after finding that an act or practice is contrary to human rights under Part II Division 3 of the Human Rights and Equal Opportunity Commission Act 1986, or constitutes discrimination under Part II Division 4 of the HREOCA, a recommendation may be made for the payment of compensation or damages to a person who has suffered loss or damage as a result of the conduct: s. 29(2)(c) and 35(2)(c).

It is proposed, by clauses 30 and 37 of the Bill, to remove the function of the Commission under the HREOCA to make any recommendation for the payment of compensation or damages.

Of course, such recommendations are at present unenforceable under the HREOCA in any event, which provides only for a report to be made to the Minister.  However, to the extent that the HREOCA is the only legislation in Australia which contains a direct remedy for a breach of a “human rights”, defined in the HREOCA to include the fundamental rights contained in the International Covenant on Civil and Political Rights (ICCPR), it is in our view essential that this
function not be watered down any further.

It is also arguable, in our view, that the removal of this function constitutes a breach of Article 2(3) of the ICCPR, which is binding upon Australia under international law.  Article 2(3) states that:

(a)  To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.
 
To the extent that the HREOCA provides the only effective remedy for breaches of the ICCPR in Australia, the removal of the possibility of recommending compensation or damages would, in our view, constitute a breach of Article 2(3).
 

Nick Poynder
Secretary/Treasurer
Australian Lawyers for Human Rights

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This page last updated 4th May 2004