Boniface, Dorne --- "Does Anyone Really Know Where We're Going? Changes to the Human Rights and Equal Opportunity Commission" [1997] AUJlHRights 25; (1997) 4(1) Australian Journal of Human Rights 206

Does Anyone Really Know Where We're Going? Changes to the Human Rights and Equal Opportunity Commission

Dorne J Boniface[2]

It seems that anything could happen and there are many of us who can't help wondering if anyone really knows where this is all going. Not surprisingly there are some politicians who would wish that the HREOC itself could be abolished -- although it is hard to believe that even in the present climate this could be a reality. What is more likely is that HREOC could be emasculated into banality and neutered politically --for it is not to be forgotten that much of what a "real" human rights commission does has significant political implications at all levels of government, by virtue of not only the decisions it makes but also the lobby groups it offends.

Examination of the Human Rights Legislation Amendment Bill and the debate which surrounds it highlights some of the thinking and priorities presently exhibited by the Federal Government in relation to human rights in Australia and more particularly the Human Rights and Equal Opportunity Commission or whatever its name will be (and is worthy of greater analysis than this comment allows)[2]. The Senate Committee recently reported on the Bill[3]. The Bill is said to have two fundamental objectives. First, it amends the power and functions of the President and Commissioners of the HREOC and introduces administrative procedures by a tripartite review of HREOC's functions. Secondly, it seeks to ensure that the determinations relating to discrimination under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 can be enforced, in response to Brandy v Human Rights and Equal Opportunity Commission[4] in which the High Court held that HREOC could not make binding determinations. If the purpose of the Committee's report was to inquire into the concerns of the community relating to this Bill, then the report has been a grave disappointment. The exercise seems to have been a classic "Yes Minister" manoeuvre which merely paid lip service to some of the Community's concerns and recommended changes to the very edges of the Bill.

The HREOC at present comprises a President and six Commissioners viz, the Race Discrimination Commissioner, the Sex Discrimination Commissioner, the Disability Discrimination Commissioner, the Human Rights and Equal Opportunity Commissioner, the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Privacy Commissioner. The HREOC has among its functions, when protecting and promoting human rights, the obligation to inquire into alleged infringements of the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 and to endeavour by conciliation to effect a settlement. This function, under the respective Acts, is delegated to each respective Commissioner and if the Commissioner is unable to conciliate a complaint and the complainant still wishes to proceed, the Commissioner must refer the matter to HREOC for inquiry. The HREOC inquiry power can be exercised by one or more Commissioners but not the Commissioner who conciliated the matter. At the conclusion of the HREOC inquiry, the matter is either dismissed or if the complaint is upheld there is a determination in favour of the complainant. However the HREOC is not a court,[5] and if a respondent failed to comply with a determination, the complainant or Commissioner could take the matter to the Federal Court where a hearing de novo would be undertaken.

The Sex, Race and Disability Discrimination Commissioners have therefore been responsible for the day to day handling of complaints under their respective legislation and have been responsible for conciliating such complaints. The Bill introduces uniform procedures for handling complaints under the three anti-discrimination Acts and all inquiry and conciliation functions under the three Acts will become matters for the President and not the individual Commissioners. If the President is unable to conciliate the complaint, the provisions of the Bill require the President to terminate the complaint and give the complainant notice of the termination, whereupon access to the Federal Court might be obtained.

The Race, Sex and Disability Commissioners will therefore have their role of investigating and conciliating relevant complaints removed to the President and the Commissioners are instead to be given a function of amicus curiae to ostensibly argue the policy imperatives of their legislation in the Federal Court after obtaining the Court's leave.[6]

In 1993, a tripartite review comprising officers from the Attorney-General's Department, the Department of Finance and the HREOC examined the functions and management of the HREOC. Following Brandy's case the tripartite review's scope was broadened to consider the enforcement of the HREOC's determinations. The report of this review was finalised in 1995 but has not been made public. In its evidence before the Senate Legal and Constitutional Legislative Committee HREOC advised that the tripartite review recommended that:

• steps be taken to unify HREOC and create standard processes for its diverse functions and to this end there should be unified managerial authority at the highest level with responsibility for resource allocation and staff management;
• the experience and expertise of the Commissioners should be directed to their statutory roles rather than routine matters of administration;
• the lines of accountability in complaint handling, other than in relation to Privacy Act complaints, could be simplified to enable efficient performance and, to this end, complaint handling, should be combined in one officer-holder;
• unconciliated discrimination matters should be referred to the Federal Court. The review envisaged that a Human Rights Division would be established in the Federal Court, and that its judges would delegate some of their functions to registrars, whom the review described as `judicial commissioners'.[7]

On the face of it the Bill seems to have generally conformed with the known conclusions of the tripartite review. However without the details of the review being made public, this is of course very difficult to determine. What can be examined are some community concerns relating to the changes proposed by the Bill[8] and the resultant reactions and recommendations of the Senate Committee. It is the concerns and reactions relating to conciliation which are the subject of this comment.

In the Attorney-General's second reading speech, the Human Rights Legislation Amendment Bill was said to "encourage better administration in the HREOC by clarifying the lines of management responsibility and facilitating timely decision making".[9] To achieve this objective the Bill provides for the President of the HREOC to become its Chief Executive Officer, a function which is presently conferred on the Commission itself. The President would become responsible for all complaint handling under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Human Rights and Equal Opportunity Act 1986. The President would be empowered to delegate conciliation functions to staff of the HREOC but not to the Sex, Race or Disability Discrimination Commissioners.[10]

It is not evident from the Bill how "timely decision making" might be facilitated other than by vesting one person with responsibility for conciliation of all complaints and standardising the referral etc provisions on the model of the most recent legislation: the Disability Discrimination Act 1992. Assuming that one person could be sufficiently knowledgeable and familiar with the complexities of race, sex and disability complaints and conciliation thereof, what seems to be envisaged is some form of standardisation of conciliation procedures. This suggests that all complaints can somehow be treated in exactly the same way. If discrimination complaints were "wiggets" this would undoubtedly be "efficient" however the complexity of human nature rarely conforms or responds well to such uniformity.

The submissions made to the Senate Legal and Constitutional Legislative Committee generally expressed agreement that procedures under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 should be standardised. However individuality of complaints was generally thought to be better accommodated by retention of conciliation being undertaken by the Commissioners. Some submissions made the point that there:

is a major flaw in taking the handling of conciliation away from a specialist in the area and giving it to a person who has no necessary background in the type of discrimination involved ... in practice the smooth and effective running of conciliation depends on the exercise of discretions by (at present) the Commissioners and their delegates.[11] These public servants [officer's of HREOC by delegation from the Executive President under the Bill] will however lack the independence and authority of the position of Sex Discrimination Commissioner.[12] The proposed amendment seems to be based on the presumption that conciliation of discrimination complaints is mechanical and generic ... the conciliation of a sex discrimination complaint may require a different approach to that involving an allegation of, for example, disability discrimination and as a result the exercise of discretions must be different. This is better left to people who specialise in a particular type of discrimination and who can draw upon an expertise derived from that specialisation. It is not just a matter of "working by numbers".[13]

The HREOC supported the institution of an Executive President and the transfer of complaint handling functions under the three anti-discrimination Acts.[14] However it was of the view that the President should have power to delegate complaint handling to members of the Commission as well as Commissioners with the proviso that a Commissioner who handled a complaint could not subsequently appear as amicus curiae if that complaint was contested in the Federal Court. The Committee's response to these concerns was to consult the Attorney-General's Department, who advised that:

To provide for such delegation would be contrary to the stated reasons for centralising complaint handling in one office, ie the desire to ensure a more efficient, effective and consistent decision making process. It would also be inconsistent with the proposal to provide Commissioners with the additional function of appearing as amicus curiae in later proceedings before the Federal Court.[15]

The Committee thereafter considered that it is appropriate for the Bill to separate the inquiry and conciliation functions to be performed by the President from the education and amicus curiae functions to be performed by the anti-discrimination Commissioners. This conclusion seems to be based on the concern about the "perception, real or otherwise that there is a conflict between the role of advocacy and conciliation".[16]

There are some interesting nuances which can be detected from the responses of Attorney-General's Department and the Committee. It is unclear on what basis the Attorney-General's Department took the view that the HREOC decisions needed more "consistency". However the Committee's conclusion seems to have been influenced by a submission received from Resolutions Pty Ltd on behalf of the Australian Bus and Coach Association and partly quoted in the Committee's report:

In principle, specialist Commissioners are charged with performing a balancing role between the interests of complainants, the general public, other people with disabilities, and the bus operators who are caught in the middle. However, we believe it is very difficult to do other than conclude that specialist Commissioners (and by extension the Human Rights and Equal Opportunity Commission) have generally acted as advocates, rather than seeking to balance competing claims in light of the objectives set out in the Act.[17]

It is interesting to note that the Australian Bus and Coach Association were also not supportive of Commissioners performing the role of amicus curiae because "we are extremely doubtful as to the impartiality of special purpose Commissioners".¹⁸ On this basis one might perhaps justifiably speculate that the Association might in fact be supportive of the abolition of the Commissioners. Perhaps, however, even the Association didn't dream that this could be possible.

The "perception, real or otherwise that there is a conflict between the role of advocacy and conciliation" is interesting. Why might this exist? Conciliation of a complaint is not undertake as of right. The Sex, Racial and Disability Discrimination Acts require that it must first appear to the Commission that "a person has done an act that is unlawful ..." and then the Commissioner can decide not to inquire into that act if the Commissioner is satisfied the act is not unlawful. Conciliation is therefore undertaken in a context where it is believed that an unlawful act has prima facie occurred, however the conciliator must maintain neutrality despite this context. It must indeed be an extremely difficult task to maintain such neutrality and the trust of respondents in these circumstances. Clearly the trust of some respondents has not been maintained.

However the Bill does not solve this problem as it provides for a similar context. The President is required to inquiry into a complaint and if her or she is satisfied that the alleged unlawful discrimination is not unlawful the complaint may be terminated.[19] This means that conciliation under the Bill will take place in the same context as that which presently exists: the conciliator (President or non-Commissioner delegate) is satisfied that the complaint is unlawful. The Bill, in this respect represents a lost opportunity to forestall the same accusations that were made to the Senate Committee, from being reiterated in the future.

Indeed there were many constructive amendments which could have and needed to be made to the Sex Racial and Disability Discrimination Acts. However most of the changes proposed by the Human Rights Legislation Amendment Bill 1996 do not suggest that a constructive approach to anti-discrimination in the federal jurisdiction has been adopted.

[1] Faculty of Law, University of New South Wales.

[2] This short piece is part of a longer article which examines the changes proposed to HREOC by the Bill in greater detail and breadth.

[3] On 6 February 1997, the Selection of Bills Committee recommended and the Senate agreed to refer the provisions of the Human Rights Legislation Amendment Bill 1996 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 27 May 1997. The Senate agreed to extend the time for the presentation of the Committee's report to 17 June 1997 and a further extension was granted to 26 June 1997.

[4] [1995] HCA 10; (1995) 183 CLR 245.

[5] Brandy v Human Rights and Equal Opportunity Commission & Ors [1995] HCA 10; (1995) 183 CLR 245.

[6] Section 46PS Human Rights Legislation Amendment Bill 1996.

[7] Report of the Senate Legal and Constitutional Legislation Committee on the Human Rights Legislation Amendment Bill 1996 at para 1.32.

[8] via a written and oral submission process.

[9] Report of the Senate Legal and Constitutional Legislation Committee on the Human Rights Legislation Amendment Bill 1996 at para 2.5.

[10] For complaints made under the Human Rights and Equal Opportunity Commission Act 1986 the President can delegate investigation and conciliation function to the Human Rights Commissioner, but not to any other Commissioner.

[11] Associate Professor Phillip Tahmindjis, Faculty of Law Queensland University of Technology. 5 March 1997 Submissions to Senate Legal and Constitutional Legislation Committee. Submission 9.

[12] National Pay Equity Coalition, 27 March 1997 Submissions to Senate Legal and Constitutional Legislation Committee. Submission 30.

[13] Associate Professor Phillip Tahmindjis, ibid.

[14] It should be noted that the former Sex Discrimination Commissioner, Ms Sue Walpole, did not support the tripartite review's recommendation to vest complaint handling powers in the new Executive President. HREOC Submission 10 para 2.11.

[15] Report of the Senate Legal and Constitutional Legislation Committee on the Human Rights Legislation Amendment Bill 1996 at para 2.26.

[16] Report of the Senate Legal and Constitutional Legislation Committee on the Human Rights Legislation Amendment Bill 1996: Conclusions and Recommendation No. 2.

[17] Submission 36.

[18] Op cit.

[19] Sections 46PD, 46PE and 46PG Human Rights Legislation Amendment Bill 1996.