AUSTRALIAN HUMAN RIGHTS COMMISSION REPEAL
(DUPLICATION REMOVAL) BILL 2018
OUTLINE
The purpose of the Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018 is to remove commonwealth involvement in running a public funded commission to advocate on human rights. The bill anticipates that states and territories will take up this advocacy and responsibility. The bill does not alter the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975, including the relevant offence provisions in these Acts. Aggrieved plaintiffs will retain the right to take action under the relevant anti-discrimination regimes in the States and Territories, where applicable. Persons aggrieved under those Acts can seek federal authorities’ enforcement of the offence provisions of those Acts.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This clause provides for the provision of the Bill to commence on the day after this
Bill receives the Royal Assent.
Clause 3: Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.
Schedule 1— Amendments
Australian Human Rights Commission Act 1986
4. This Schedule repeals the whole Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018 is to end commonwealth duplication of human rights advocacy performed by state-equivalent commissions.
Human rights implications
Whilst touching on a number of human rights topics, the bill leaves untouched commonwealth legislation relating to human rights, namely the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975. Elements of the Fair Work Act 2009 also uphold human rights and are likewise untouched by this Bill.
The bill will remove duplication that exists as a result of the Australian Human Rights Commission Act 1986. It will encourage aggrieved plaintiffs to use relevant State and Territory anti-discrimination legislation.
The functionality of the Commission can be replicated if a government so wishes by other means. The offences under those Commonwealth Acts could be prosecuted by the Commonwealth. Alternatively, the government could propose consequential amendments to provide for applications by aggrieved plaintiffs to be lodged directly in the Federal Court. It is also observed that the bill does not touch the significant number of bodies at state levels tasked with upholding specific human rights, including:
· the Victorian Equal Opportunity and Human Rights Commission
· the Anti-Discrimination Board of New South Wales
· the Anti-Discrimination Commission Queensland
· the Equal Opportunity Commission Western Australia
· the South Australian Equal Opportunity Commission
· the Office of the Anti-Discrimination Commissioner of Tasmania
· the ACT Human Rights Commission
· the Northern Territory Anti-Discrimination Commission
· the Equal Opportunity for Women in the Workplace Agency
· the existence in most, if not all, state and territory governments of Ministers for the status of Women and Ministers for Disabilities
· the existence of Legal Aid Commissions and agencies, and Community Legal Centres funded in part or in full by state and federal governments, to assist people from lower socio-economic backgrounds aggrieved and seeking relief under state and federal acts
These bodies are funded by the states and territories and it is conceivable that they could also receive federal funding to support the work or caseload that might arise in consequence of the abolition of the Human Rights Commission proposed in this Bill.
It is also observed that the Australian Federal Police and the Director of Public Prosecutions have the power to give effect to the residual Commonwealth Acts regarding discrimination by way of prosecutions under the offence provisions of those acts.
The bill repeals the Australian Human Rights Commission Act 1986 and, thereby, Part IIB which provides for redress for unlawful discrimination. This redress may occur under the present Act via the Commission constituted under the Act. As stated earlier, each of the other acts described in section 3 of the Act definition of ‘unlawful discrimination’ have provisions within those acts to redress discrimination and other offences within those acts. Indeed, discrimination is only unlawful under the Act because it is already unlawful under the other Acts. The offences under those Acts could be prosecuted by the Commonwealth or, the government could propose consequential amendments to provide for applications by aggrieved plaintiffs to be lodged directly in the Federal Court. To summarise in a non-exhaustive way the Acts untouched by this Bill that will continue to provide rights of redress or liability to prosecution for breaching human rights, they include:
Commonwealth
• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Fair Work Act 2009 (Cth)
Australian Capital Territory
• Australian Capital Territory Human Rights Act 2004 (ACT)
• Discrimination Act 1991 (ACT)
New South Wales
• Anti-Discrimination Act 1977 (NSW)
Northern Territory
• Anti-Discrimination Act 1996 (NT)
Queensland
• Anti-Discrimination Act 1991 (QLD)
South Australia
• Equal Opportunity Act 1984 (SA)
Tasmania
• Anti-Discrimination Act 1998 (Tas)
Victoria
• Equal Opportunity Act 2010 (Vic)
• Charter of Human Rights and Responsibilities Act 2006 (Vic)
Western Australia
• Equal Opportunity Act 1984 (WA)
The latest available budget information for the state and territory bodies excluding the ACT indicate a combined budget of $26.1 million to advance the case for human rights. The most recent available figures indicate the total funds from government provided to the Human Rights Commission are $19.6 million.
The question of accessibility to the means to uphold the rights described in state, territory and federal legislation is a matter of government resourcing in consequence of repeal of the Australian Human Rights Commission Act 1986.
Conclusion
Whilst at first glance it might seem that the Bill may raise human rights issues, the Bill is nonetheless compatible with human rights because it is a question for state, territory and federal governments as to how they resource the agencies described herein to uphold those rights after repeal of the Australian Human Rights Commission.
Senator Bernardi