Page 3010 - Week 10 - Tuesday, 23 August 2005
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Another aspect of the current bill that we would like to improve is the inclusion of a clear timeframe for the initial consideration of a complaint. The bill as it stands removes the current 60-day timeframe for determining whether a discrimination complaint will be dealt with by the discrimination commissioner, despite the fact that this has been identified as a particular strength of the discrimination complaints system. Avoiding clear time limits leaves commissioners with no clear parameters for determining performance and establishing resource levels. We believe that the proposed requirement in clause 45 that the commission handle complaints promptly and efficiently would be strengthened by a timeframe for the initial part of the process. It is important to be clear that we are not talking about a timeframe for resolving a complaint, we are only talking about a timeframe for determining whether a complaint will be investigated or considered by a commissioner and which commissioner will handle the matter.
There are many reasons why it is a benefit to individuals making complaints to have a clear timeframe in which to receive a preliminary decision from the commission regarding whether a complaint will be investigated or not. I will have more to say about this in the detail stage of the debate, when I will be moving an amendment to include a time limit of 90 days for determining whether a complaint is to be investigated or considered by the commission or declined. This allows up to 30 days for the complaint to be allocated to an individual commissioner and another 60 days for the commissioner to undertake preliminary consideration of the matter and determine whether the complaint warrants consideration. This is a maximum timeframe—there is nothing to preclude the commission from setting shorter targets—but it ensures that individuals have a clear decision about the status of their complaint no longer than three months after putting their complaint in writing.
There are a number of other issues to be considered in the establishment of the human rights commission. The bill changes the term “investigate complaints” to “consider complaints”, which may be misunderstood to be a passive assessment by the commissioner rather than the active gathering of evidence and seeking of responses from the parties involved. Alternatively, consideration may be seen to have quasi-judicial overtones implying that commissioners will consider the evidence and make some determination. A further concern is that, as a new term, the use of “consider” may introduce legal uncertainty about how decisions of the commission are interpreted by a court or tribunal.
The ACT Greens would prefer to see the term “investigate” retained or the commonwealth term “inquire into” adopted. However, because this would require close to 100 individual amendments we will not be attempting to change the bill in this regard. Instead we urge the government to monitor and evaluate the impact of the change of terminology and to make a commitment to respond appropriately to any problems that arise.
Another concern raised by experts working with vulnerable groups is the entitlement to reasonable assistance from the commission to put a complaint in writing contained in clause 44. While it is important that complainants receive assistance to formulate their complaint in terms appropriate to the relevant act, there is an argument that the commission is not in an appropriate position to provide this advice as it may result in the inability, whether perceived or actual, of commission staff to deal with complaints in an
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