Page 4480 - Week 15 - Tuesday, 19 November 1991
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Clause 78 grants the commissioner wide powers to determine what procedures should be followed during a public hearing, yet no standard procedure is laid down. Clause 79 says that the commissioner will give each party written notice of the time and place of a public hearing but lays down no procedure to follow if the alleged offender is unable to attend at the stated time and place. Clause 80 removes the common law right of the alleged offender to be represented by legal counsel at a public hearing, in this case, as against the private hearing to which I referred earlier.
Under clause 81 the commissioner could compel any person, not just the alleged offender, to write down his or her thoughts and present that document to the commissioner at a specified time and place, if the commissioner has decided that the person has some relevant information. I believe that this is a bizarre power. Our common law allows every individual the right to refuse to answer questions if they wish; under clause 82 this Bill destroys that right by making it a serious offence not to answer questions.
Clause 84 permits the commissioner to order that information may be suppressed. This power is not qualified within the Bill, which does not require the commissioner to have reasonable grounds to do so. Under common law one also has the right not to incriminate oneself. This right does not exist under this Bill and is removed by clause 92. It not only removes this right from an alleged offender; it also removes it from anyone else who appears, either voluntarily or compulsorily, before the commissioner.
Clause 96 allows a person to be held to have a "state of mind" in relation to particular conduct if such conduct was engaged in by an agent of the person, even though the person may not have known of the agent's specific action that was discriminatory. Let us take an example of using an employment agent to hire staff. The employment agent could well have the authority to hire staff on behalf of a business. It would seem that, under clause 96, if the employment agent discriminated against someone in hiring one of the businessman's staff, the businessman could be held to have had a "state of mind" in relation to that conduct. The businessman would have the opportunity to establish that he took reasonable precautions to avoid the conduct. However, the onus of proof is reversed. It is no longer a requirement that you have to be proved guilty; you have to prove yourself innocent.
There are many more contradictions, flaws, badly worded clauses, and grave concerns about the removal of individual rights by this Bill than those that I have already mentioned. I believe that it is bad legislation, and that it throws too wide a net. Further, although a person may seek a review by the Administrative Appeals Tribunal, nothing in the Bill allows the parties to take the matter to court for an appeal against the finding of the commissioner. One must ask why a person is not entitled to seek a remedy for unlawful discrimination through the courts.
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