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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
HUMAN RIGHTS
AND EQUAL OPPORTUNITY COMMISSION AMENDMENT
BILL 2002
EXPLANATORY MEMORANDUM
(Circulated
by authority of the Attorney-General,
the Hon Daryl Williams AM QC
MP)
This Bill amends the Human Rights and Equal Opportunity Commission Act
1986 (the Act) to ensure that the Crown in right of the States is bound by
the complaints and remedies provisions for unlawful discrimination in
Part IIB of the Act.
The amendments rectify a drafting oversight
that was introduced into the Act by reforms in the Human Rights Legislation
Amendment Act (No. 1) 1999 (the Amendment Act). This drafting
oversight was identified in a Federal Magistrates Service case late last year
called Rainsford v State of Victoria [2001] FMCA 115. The effect of the
Rainsford decision is that the Crown in right of a State is not bound in
cases in which it is a respondent to a complaint to the Commission or an
application to the Federal Court or the Federal Magistrates Service under the
Act alleging unlawful discrimination.
As noted above, the drafting
oversight identified in Rainsford was introduced into the Act by reforms
in the Amendment Act. Prior to the commencement of the Amendment Act on
13 April 2000, the legislative structure for the handling of
complaints alleging unlawful discrimination was set out in each of the Acts
dealing with the specific areas of sex, disability and race discrimination; that
is, the Racial Discrimination Act 1975, the Sex
Discrimination Act 1984, and the Disability Discrimination Act
1992 respectively. When the complaint handling structure was moved from the
three specific Acts into the Act, no provision was made to ensure that the Act
bound the States in relation to complaints and applications to courts. This was
an unintended drafting oversight in the Amendment Act.
The amendments contained in the Bill clarify that the States are bound by Part IIB of the Act.
The amendments will simply re-instate the situation that was believed to be the case prior to the Rainsford decision.
The amendments will have little, if any, impact on government revenue.
NOTES ON CLAUSES
1. This is a formal clause which specifies that the Bill, when enacted, will be known as the Human Rights and Equal Opportunity Commission Amendment Act 2002.
2. This clause provides that Schedule 1 of the Bill containing the amendments to be made by the Bill, when enacted, will commence on 13 April 2000 as the drafting oversight that this Bill seeks to address has existed since that time.
3. This clause provides that the items in the Schedule to the Bill amend the Acts specified in the Schedule.
Item 1
Section 6 of the Act provides for the extent to which the Act binds the Crown. Section 6(1) of the Act provides that the Act binds the Crown in right of the Commonwealth and of Norfolk Island, but except as otherwise expressly provided does not bind the Crown in right of a State.
Item 1 inserts a new sub-section into the Act that will make it clear that Part IIB of the Act binds the States.
The effect of this item, in conjunction with the commencement provision in clause 2 of the Bill, will mean that the Human Rights and Equal Opportunity Commission and the relevant federal courts will have jurisdiction under the Act over acts or omissions occurring on or since 13 April 2000. In particular, the effect of this item will be that complaints against a State under the Act that are now before the courts or before the Commission can be further pursued.