Building a Better Australia

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Senator BURSTON (New South Wales) (17:30): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator BURSTON: I table the explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

Mr President, I thank the Senate for the opportunity to introduce the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017. The purpose of the Bill is to make a change to the complaints handling procedure of the Australian Human Rights Commission. Before proceeding to a full inquiry and attempt at reconciliation, the Commission will now be required to contact both the complainant and the respondent or respondents, and consider any evidence that they provide for a preliminary assessment of the case. If the complaint is lacking in substance or otherwise unworthy, it can be terminated at that point. I contend that the work of the Commission is seriously impeded by cases involving alternative facts and unreliable evidence, adding unnecessarily to its workload, and involving people falsely accused of discrimination in serious damage to their reputations and causing them untold expense.

Briefly, the change to the Commission’s complaints handling procedure is achieved by removing subsection 46PF(1) of the Australian Human Rights Commission Act 1986 and replacing it with new provisions to require the President of the Commission to appoint a committee to make a preliminary assessment of every referred complaint. The committee will consist of the President and two other members of the Commission. Complainants will be informed of the proposed preliminary assessment of their complaint and they will be invited to provide further information for the complaint. After receiving the information, the committee may form the view that the complaint should be terminated, or that one or more respondents should be removed from the complaint.

The committee will then proceed to notify both the complainant and the respondent or respondents that an inquiry will be conducted into the complaint by way of a preliminary assessment. At the same time, the respondent or respondents will be invited to provide evidence in relation to the complaint for the purposes of the preliminary assessment. Once the evidence is received from the parties, the committee will consider the complaint and decide whether it could be terminated, or whether one or more respondents should be removed from the complaint. A decision to remove a respondent or respondents will be notified to the complainant by the President in the form of a recommendation with reasons. If the complainant does not withdraw the complaint or remove a respondent or respondents at this point, the President will notify an intention to inquire into the complaint and attempt to conciliate it.

Mr President, I emphasise that the preliminary assessment procedure contemplated by the Bill before the Senate is not intended to mandate that the complainant withdraw the complaint in the event of an adverse finding by the committee. But a decision of the preliminary assessment committee against the complainant could result in the President making a decision under subsection 46PH of the Australian Human Rights Commission Act 1986 to terminate the complaint. By way of contrast, if the committee decides that a respondent or respondents should be removed from the proceedings, a recommendation to that effect will follow, but ultimately the issue of removing one or more respondents is a matter for the complainant.

The preliminary assessment procedure is not intended to deny a complainant their day in court as it were, but any decision of the committee will necessarily inform the proceedings and in effect add to the burden of proof required of the complainant. It would be a brave complainant who proceeded with a complaint against a respondent or respondents who the President recommended should be removed from a proceeding. I would not presume to give gratuitous legal advice to such a complainant, Mr President, but it may be that a complainant who proceeded with a complaint against a respondent or respondents in the face of a recommendation of the Human Rights Commission that one or more of those respondents should be removed from the proceeding may well be in the unenviable position of losing qualified privilege as a defence under the uniform defamation law.

I turn now to the need for the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017, and I take the opportunity to mention the excellent work of the current inquiry by the Parliamentary Joint Committee on Human Rights which is examining certain procedures of the Australian Human Rights Commission. I am unable to say with any certainty whether my notice of the preliminary assessment process bill was drawn before or after the terms of reference for the inquiry were announced. What I can say is that I had no idea the committee intended reviewing the procedures of the Commission. Be that as it may, a large number of submissions to the inquiry have drawn attention to the risk of respondents being dragged before the commission to answer spurious allegations that severely impact their reputations and wallets.

Last week at a public hearing of the committee in Sydney, Dr Sev Ozdowski, OAM, a former Australian Human Rights Commissioner, gave evidence that people at the Human Rights Commission like to “enforce their vision of the world” implying collateral damage to unwitting respondents who find they must justify words and actions that, in normal circumstances, would be well within the bounds of free speech. Dr Ozdowski had no hesitation in asserting to the committee that the complaints handling procedure at the Human Rights Commission “is biased in favour of the person making the complaint.” The former commissioner also made the point that recent high profile cases such as complaints about Queensland University of Technology students and cartoonist Bill Leak have focused public attention on the Commission in a positive way from a public accountability perspective.

At the same hearings last week in Sydney, the eminent jurist and former judge, Justice Ronald Sackville, AO, QC, gave evidence that he would like to see a more stringent merits assessment test applied at an early stage in proceedings before the Australian Human Rights Commission. The judge was asked about the risks to the law of being brought into disrepute by unworthy cases receiving too much attention at the Commission. Mr President, may I quote Justice Sackville’s response: “I am a proponent of early termination of cases that are without merit…(I)f the mechanisms within the Human Rights Commission for example, were changed so as to allow early termination much more readily, or to compel it much more readily, that would mitigate the risk [of bringing the law into disrepute].”

In making a case for changing the complaints handling procedure at the Human Rights Commission, Mr President, I would like to reflect on the unusual circumstances in which the Commission in its present form came into existence in late 1986. A year earlier, in November 1985, the Hawke Labor government introduced and passed in the House of Representatives the Human Rights and Equal Opportunity Commission Bill 1985 (HREOC) along with the Australian Bill of Rights Bill 1985. They were concurrent bills, the plan being that HREOC would be the enforcement mechanism for what was to be Australia’s first statutory Bill of Rights. Bob Hawke thought he had all his ducks lined up in the Senate, but then there was a problem for which former independent Senator Brian Harradine is sometimes unjustly held responsible.

A joint debate on the Bill of Rights Bill and the HREOC Bill took place in the Senate in early 1986. According to former Prime Minister Gough Whitlam, debate on the Bill of Rights Bill in the Senate was hijacked by the Labor Premier of Western Australia, Brian Burke, who informed Bob Hawke that there would be no money for head office of the Labor Party from Labor’s supporters in the west if the Bill of Rights Bill went ahead since the provision for one vote one value in the Bill would put an end to Labor’s gerrymander in the Western Australia Parliament. Hawke’s government abandoned the Bill of Rights Bill in April 1986 while the HREOC legislation was held over until later in the year. The HREOC Bill was amended to remove all reference to the Australian Bill of Rights Bill – a considerable task given its primary objective was to provide the enforcement mechanism for the rights Bill. A severely mauled HREOC Bill became law in November 1986. The Commission thus established, I would say, was condemned to a role in Australia’s justice system as a watchdog with no teeth. Others say the Commission (officially called the Australian Human Rights Commission since 2009) has been trying to justify its existence from the moment of its birth in 1986 with the stillborn Australian Bill of Rights.

People from across the political spectrum in Australia believe our legal system is the poorer for not having a bill of rights either in statutory or constitutional form. Surveys consistently show that once it is explained that a bill of rights is a line in the sand against tyrannical governments and has nothing to do with the rights of one person against another, support for a bill of rights increases dramatically. There are many people in the Pauline Hanson One Nation Party who argue passionately for a bill of rights as there are in other minor parties and in the major parties. In my opinion, the absence of a bill of rights at a federal level in Australia’s legal system is like a deep hole we seem to have fallen in and we are unlikely to have any chance of achieving important goals such as legal equality and access to justice until as a nation we take the first important step to climb out of the hole by legislating a statutory bill of rights or human rights charter.

Meanwhile, Mr President, we have to live with the survivor of that difficult birth in 1986, the Australian Human Rights Commission. The Commission’s role today is complicated by its history, but for many Australians it represents a lifeline to justice for alleged acts of discrimination that would otherwise go unpunished. And the deterrent element in a decision of the Commission has immeasurable importance for a person aggrieved by discrimination. I would not want to diminish in any way the valuable work of the Commission in allowing complainants the opportunity to conciliate their concerns before taking on the battleground of the courts system. If the Commission is unable to conciliate a complaint, the complainant has no forum for litigation other than the courts, and this could be another issue for the current Parliamentary inquiry. Should the Commission be given a quasi-judicial function rather than have the complainant litigate the same facts and supporting evidence that the Commission has already considered?

That is a question for another day, Mr President, and I’m pleased to inform the Senate that the Bill now before the Senate is a much more modest proposal. The Bill allows the Commission to conduct a preliminary assessment of the merits of a complaint at an early stage in the proceeding with a view to weeding out unmeritorious complaints. Of the 2,013 complaints dealt with by the Commission in the year to 30 June 2016, more than 75 per cent were successfully conciliated, suggesting there are about 500 complaints that might benefit from the new system. Some cases will involve allegations of self-evident and egregious discrimination, of course, but others will be minor matters that could never justify the reputational and monetary damage caused to innocent respondents, and these are the cases the Bill is targeting. I commend the Australian Human Rights Commission Amendment (Preliminary Assessment Process) Bill 2017 to the Senate.

Senator BURSTON: I seek leave to continue my remarks later.

Leave granted; debate adjourned.