Northern Territory Second Reading Speeches

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ANTI-DISCRIMINATION AMENDMENT BILL 1999

Bill presented and read a first time.

Mr REED (Deputy Chief Minister): Mr Speaker, I move that the Bill now be read a second time.

The purpose of this Bill is to amend the Anti-Discrimination Act 1992 to remove any doubt as to the ability of the Anti-Discrimination Commissioner to conduct hearings pursuant to the Act which was Parliament’s original intention when the Act was passed in December 1992. One of the principal functions of the Anti-Discrimination Commissioner is to sit as hearing commissioner where complaints have not been conciliated or settled. Normally, the only circumstances where the commissioner does not hear complaints and a separate hearing commissioner is appointed is where she has personally investigated, or attempted to conciliate a complaint or, where on the advice of the commissioner, the minister believes it is reasonable in all the circumstances for a separate hearing commissioner to be appointed. Such circumstances include the absence or illness of the commissioner, or where a party to a complaint is a personal friend of the commissioner, which would give rise to the perception of bias. To ensure her independence form the actual complaint process, the commissioner is issued appropriate delegations pursuant to section 15.1 of the Act to her conciliation staff who receive investigate and conciliate complaints. However, paragraph 2 of section 15 says: ‘a power or function delegated under this section, when exercised or performed by the delegate shall, for the purposes of this Act, be deemed to have been exercised or performed by the commissioner.

In a recent appeal against the decision of one of the commissioner’s delegates, counsel for the appellant referred to this section, questioning whether the commissioner could hear any matters referred to her. Referring to section 15 of the act, the view was expressed that where the commissioner has delegated her authority, the delegate is the commissioner, and therefore the commissioner cannot sit in hearing on a matter that a delegate has investigated or conciliated by virtue of section 85.

While the appeal was dismissed, the magistrate did state that this raised serious questions in relation to any hearing that the commissioner may have embarked on under the Act, or may intend to embark on under the Act. The magistrate did not make a finding on this issue, and a clarification could be sought from the Supreme Court. However, such a procedure would involve delay and further cost.

The bill amends section 85 of the Act, by inserting in subsection (1) ‘personally’ before ‘conducted’, so that the section reads:

Where the Commissioner has personally conducted the investigation of a complaint under division 2, or taken part in the conciliation process of a complaint under division 3, the Commissioner shall not conduct the hearing of the complaint under this division, and the minister shall appoint a person to conduct the hearing of the complaint.

This makes the intent of the Act quite clear. The commissioner can delegate her powers of investigation and conciliation, and not prejudice her role as the hearing commissioner. That was the original intent and this amendment makes it clear in light of the legal doubt that has been raised.

To avoid any possible doubt or confusion, the bill further declares that a hearing conducted by the commissioner before the commencement of this amending Act, to have been validly conducted, and any order made by the commissioner during or after the hearing is declared to have been validly made.

Because of the remarks by the magistrate, the commissioner has adjourned matters which were due to come before her. Therefore, I am seeking urgency for the passage of this amendment, to enable the commissioner to resume performing her duties as hearing commissioner. I commend the bill to honourable members.

Debate adjourned.

 

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