Govt Bill Threatens Discrim Body

Date: 28 March 2003

The Commonwealth Government has introduced into Parliament the Australian Human Rights Commission Legislation Bill 2003 to amend the legislation under which the Human Rights & Equal Opportunity Commission performs its functions.

While the nature of Commonwealth legislation is obviously a matter for the Federal Parliament, the Commission does not support the bill which stands to have a detrimental impact upon the work of the Commission.

The bill significantly undermines the Commission's independence in the exercise of its "intervention powers".

The Commission's intervention powers allow the Commission, with the leave of the Court, to present written and oral argument in legal proceedings involving human rights and discrimination issues. The Commission has used those powers in approximately 35 cases before Australian courts and tribunals and has never been refused leave to intervene.

In a number of the Commission's intervention cases, the Commonwealth has been a party to the litigation, including in the Tampa litigation and in the recent Full Family Court case regarding the rights of transgender people to marry.

The bill would require the Commission to obtain the Attorney-General's consent prior to seeking leave to intervene in such Court proceedings. In the Commission's view, it is inappropriate that a party to the litigation should also have a "gatekeeper function" in relation to potential interveners.

More fundamentally, such a proposal is at odds with the Commission role as an independent body, responsible for monitoring and promoting Australia's compliance with its human rights obligations. For that reason, the Senate Legal and Constitutional Committee recommended a similar provision be removed from an earlier bill introduced by the Government.

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