Law Reform Submissions 2008
Draft General Comment No. 20: Non-Discrimination
In December 2008, PILCH, together with the Human Rights Law Resource Centre, made a joint submission to the Committee on Economic, Social and Cultural Rights in relation to Draft General Comment No. 20: Non-Discrimination.
The Draft General Comment elaborates the nature and content of the right to non-discrimination contained in the International Covenant on Economic, Social and Cultural Rights. It expands upon the scope of States Parties' obligations with regard to that principle, addresses the prohibited grounds for discrimination, and explains the appropriate measures that States Parties are required to take to implement the right to non-discrimination at the national level.
The joint submission examines State Party obligations to:
- eliminate systemic discrimination;
- adopt temporary special measures; and
- prohibit distinct grounds of discrimination, including multiple forms of discrimination.
The submission also examines permissible limitations on the right to non-discrimination.
The final draft of General Comment 20 is expected to be adopted in May 2009.
Waiver of Court Fees in Victoria
In December 2008, PILCH, in conjunction with the Federation of Community Legal Centres (FCLCs) and the Law Institute of Victoria (LIV), submitted a letter to the Chief Justice of the Supreme Court of Victoria noting the legal professions concerns regarding access to fee waivers in the Victorian court system.
Unlike in the Federal court system, where express exemptions from court fees can be granted in certain circumstances and judges can exercise distretion to waive fees where payment would cause financial hardship, there is no single process in Victoria for applying for a fee waiver.
It is in this light that PILCH, the FCLCs and the LIV have suggested:
- a single waiver form for all Victorian courts and tribunals;
- a memorandum of understanding between PILCH and the relevant courts and tribunals regarding automatic waiver of fees in certain circumstances; and
- waiver of fees on certification by pro bono coordinators of recognised pro bono service providers.
AFP Review of Death Penalty Guidelines
On 2 October 2008, at a public hearing of the Joint Standing Committee on Foreign Affairs, Defence and Trade, it was noted that the Attorney-General, in partnership with the Australian Federal Police (AFP), is undertaking a review of the AFP Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations (AFP Guidelines).
In PILCH's view, this review is crucial as the implementation of the AFP Guidelines will impact on how Australia is seen to be complying with its human rights obligations. It will also play a critical role in reinforcing Australia's opposition to the death penalty. Moreover, amendments to the AFP Guidelines are necessary to prevent AFP complicity in the conviction and punishment by death of individuals overseas.
Taking into account these considerations, PILCH made a submission to the Attorney-General, in which it recommended that:
- the review of the AFP Guidelines should be informed by, and any revised guidelines should be consistent with, Australia's obligations under human rights law, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty;
- to avoid uncertainty amongst members of the AFP and the broader public regarding the lawfulness of cooperating with foreign law enforcement agencies, the AFP Guidelines should ensure that, in cases where there is a risk that an individual will be charged with an offence that attracts the death penalty, cooperation with foreign law enforcement agencies may only be provided where:
- (a) a guarantee has been obtained from a competent foreign body that no person will be subject to the death penalty; or,
- (b) such cooperation is exculpatory. The only exception should be where there is an imminent threat to human life and cooperation in such cases should proceed only with ministerial approval and a report to Parliament.
For further information, please contact Lucy McKernan or Simone Cusack.
Protective costs orders in Victoria
In September 2008, PILCH made a submission to the Victorian Attorney-General’s office proposing that the Victorian Supreme Court be specifically conferred with power to make protective costs orders in relation to ‘public interest matters’.
The general rule in civil proceedings in common law jurisdictions is that unsuccessful applicants pay the successful party’s legal costs. As a pro bono referral service, PILCH has observed that the risk of adverse costs orders is a significant deterrent to applicants with meritorious public interest claims bringing proceedings. PILCH considers that the current costs system is an impediment to access to the courts for disadvantaged and marginalised litigants, who are often afraid of being unable to pay costs if unsuccessful in their claims. Such an impediment is contrary to the Victorian Charter of Human Rights and Responsibilities and specifically to the right to access to, and equality before, the courts.
Unlike other jurisdictions, Australia does not have a specific public interest costs regime. Whilst courts have the discretion as to whether or not to make a costs award in favour of a successful litigant, they have been inconsistent in their application of this discretion in public interest cases.
PILCH’s submission proposes a specific legislative amendment to the Supreme Court Act 1986 (Vic) which will allow courts to make protective cost orders in public interest cases. PILCH also encourages similar amendments be made to the County Court Act 1958, the Magistrates’ Court Act 1989 and in the Federal jurisdiction.
Independent Reviewer of Terrorism Laws Bill
On 4 September 2008, the Australian Senate Standing Committee on Legal and Constitutional Affairs invited PILCH to make a submission in relation to the Independent Reviewer of Terrorism Laws Bill 2008.
The Bill proposes to establish an Independent Reviewer of Terrorism Laws to ensure ongoing and integrated review of the operation, effectiveness and implications of laws in Australia relating to terrorism. In its submission, PILCH supports the establishment of an independent reviewer of terrorism laws but recommends a number of amendments to improve the Bill, including that the Independent Reviewer be:
- appointed in a transparent and accountable manner;
- required to have regard to relevant international human rights law standards;
- granted the power to review any legislation which impacts upon the prevention, detection or prosecution of a terrorist act; and
- required to have regard to a non-exhaustive list of relevant considerations when determining review priorities.
Despite a tight deadline, the submission was lodged on 12 September 2024 due to the invaluable assistance provided by Mallesons Human Rights Law Group, in particular Sharyn Broomhead, Peter Henley, Robert Kovacs, James McCarthy and Jayani Nadaraj.
Joint Standing Committee on Migration Inquiry into Immigration Detention in Australia
On 29 May 2024 the Commonwealth Joint Standing Committee on Migration initiated an inquiry into immigration detention in Australia. The terms of reference for the inquiry included criteria for determining how long a person should be held in immigration and detention and for their release, transparency of immigration detention centres, options for improving services within immigration detentions centres and the use of community-based services as an alternative to immigration detention.
Whilst PILCH supported the Australian Government on its proposed reforms to Australia’s immigration detention regime as outlined in the speech of Senator Chris Evans, Minister for Immigration and Citizenship, on 29 July 2024 it believed that these proposed reforms do not go far enough.
PILCH's submission emphasised the need for Australia’s immigration regime to comply international human rights law by way of:
- Making immigration detention subject to judicial review and not subject to Ministerial discretion;
- Enshrining this process of review in legislation; and
- Making such judicial review readily accessible and affordable for those seeking it and be able to be completed in a timely and expeditious fashion.
This submission draws together the recommendations and findings of numerous government, independent and academic reports with PILCH’s experience of working with Asylum seekers and key stakeholders in this area, such as the Asylum Seekers Resource Centre.
VLRC’s Assistance Animals Consultation
The Victorian Law Reform Commission (VLRC), at the request of the Victorian Equal Opportunity and Human Rights Commission) (VEOHRC), is examining the law in Victoria as it relates to people with a disability who rely on assistance animals. Types of assistance animals currently used in Australia include guide (or ‘seeing eye’) dogs, hearing dogs, mobility support animals, medical alert animals and psychiatric service animals.
In Victoria, there is no single law that deals comprehensively with assistance animals and instead there are various Acts and regulations (including the Domestic (Feral and Nuisance) Animals Act 1994 and Equal Opportunity Act 1995 (EOA) at State level as well as the Disability Discrimination Act 1992 (DDA) at Commonwealth level) that govern this area.
VEOHRC is concerned that Victorian law does not adequately protect the rights of people with assistance animals and as a result, this lack of clarity and certainty in the law has led to discrimination.
PILCH’s recommendations included the following:
- VLRC should measure the efficacy of Victoria’s legislative framework in respect of assistance animals against Australia’s human rights obligations, including under the Convention on the Rights of Persons with Disabilities;
- various EOA amendments are needed, including a consolidation of all Victorian laws relating to assistance animals into the EOA and amendments to ensure that the EOA is consistent with the equivalent assistance animal provisions under the DDA;
- an Assistance Animals Board should be established, which would be responsible for the accreditation of approved assistance animal trainers; and
- assistance animals should be required to wear a distinctive visual identifier in order to raise public awareness and acceptance of assistance animal partnerships.
PILCH was grateful for the valuable assistance provided to this submission by Jane Wolfe and Charles Slattery of DLA Phillips Fox.
Senate Inquiry into the Sex Discrimination Act 1984
In 2008 the Senate initiated an inquiry into the effectiveness of the Sex Discrimination Act 1984 (SDA) in eliminating all forms of sex discrimination against women. The PILCH submission draws on case examples in which PILCH has advised or assisted individuals with referrals to lawyers for pro bono assistance, and feedback obtained through consultations with complainants, lawyers and health professionals. Whilst the submission focuses on sexual harassment, an extremely prevalent form of sex discrimination, many of PILCH’s observations and recommendations are also applicable to other forms of discrimination against women. The analysis of sexual harassment and the remedies provided for it under the SDA and the Human Rights and Equal Opportunity Commission Act clearly illustrate the following:
- The inadequacies and inherent power imbalances of the current complaint system
- The need to expand the role of HREOC or create a like agency to investigate and remedy sex discrimination and increase HREOC’s capacity to undertake research for law reform purposes and conduct education and training
- The often inconsistent, insensitive, and unjust outcomes for victims when internal grievance procedures are used by organizations and employers.
- The problems associated with the use of confidentiality agreements
- The inadequacy of the remedies that are currently available.
The submission was informed by principles of international human rights law, in particular the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), that places obligations on all signatories to ensure that they have legislation and policies in place to protect women from sex discrimination and provide meaningful and appropriate remedies when such discrimination occurs in order to fulfil their human rights obligations.
Commonwealth Government Legal Services Review
In May 2008 the Commonwealth Attorney-General, the Hon Robert McClelland MP, announced he was considering a number of initiatives to reform Commonwealth legal service. A key initiative approved by the Attorney-General is the development of a standard form request for tender and deed of standing offer. Part of the review is to consider ways in which the Commonwealth could support pro bono as a part of its purchasing of legal services.
PILCH submitted that the Federal Government has a responsibility to promote and support the professionalism of pro bono legal services in the private sector through policy designed to increase socially responsible outcomes.
In particular, PILCH recommended that the Attorney-General introduce a mandatory contractual requirement that each legal firm that is a participant of the Commonwealth legal scheme must “commit to provide pro bono services of at least 5% of the value of the legal fees they derive under the panel arrangements”.
This recommendation draws on the successful implementation of similar requirements that the Victorian government has imposed on law firms that are selected as providers on the Victorian government legal service panel. PILCH also recommended adopting definitions of pro bono services and approved causes that are consistent with the Victorian scheme.
Victorian Parliament’s Vexatious Litigants Inquiry
In April 2008 the Victorian Parliament Law Reform Committee released an issues paper calling for public submissions into its inquiry on vexatious litigants. The terms of reference for this inquiry included an examination of the efficacy of current vexatious litigant legislation. Since 1928 only 14 people have been declared vexatious litigants in Victoria.
PILCH and the HRLRC provided a joint submission to the inquiry outlining that the current vexatious litigant laws under section 21 of the Supreme Court Act 1986 (Vic) strike the correct balance between the right to access the courts and the need to protect other parties and the justice system from vexatious litigation.
The submission also suggested that the underlying issue of the vexatious litigant debate stems from the increase of self-represented litigants due in part to restrictive legal aid guidelines based on insufficient funding in key areas of legal assistance.
PILCH and the HRLRC recommendations included the following:
- attempts to broaden these laws should be treated with caution and ensure that rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) are adequately protected, particularly the right to a fair hearing and equal access to the courts.
- the provision the of comprehensive and ongoing training to Judges and court staff in relation to dealing with self represented litigants, including those who have mental health issues, are difficult or vexatious.
- an increase in government funding for legal aid assistance, particularly legal advice at the preliminary stage, as well as funding to increase legal resources made available to self-represented litigants at the various courts and tribunals.
Review of Exceptions and Exemptions in the Equal Opportunity Act 1995 (Vic)
In April 2008, PILCH and the Human Rights Law Resource Centre made a joint submission to the Department of Justice’s Exceptions Review on the permanent exceptions and exemptions in the Equal Opportunity Act 1995 (Vic) and their compatibility with the Victorian Charter. The submission recommended that:
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any reforms be consistent with Australia’s obligations under international human rights law and the Victorian Charter;
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all of the permanent exceptions in the Act be repealed and replaced with a provision equivalent to section 7(2) of the Victorian Charter to ensure that the rights to non-discrimination and equality are limited only where it is necessary, reasonable and proportionate to do so;
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any proposal to retain the exceptions in the EO Act should ensure that they are subject to a limitations analysis under section 7(2) of the Victorian Charter; and,
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any application for an exemption under the EO Act should be subject to a limitations analysis under section 7(2) of the Victorian Charter, and any decision granting an exemption should require an applicant to regularly consider the exemption’s necessity, in a manner that is consistent with section 7(2).
Please note that this submission should be read in conjunction with the joint, supplementary submission to the Scrutiny of Acts and Regulations Committee’s 2009 inquiry into exceptions and exemptions. This submission is available here. For information about reform of the Act more generally, please see here.
Stolen Generation Compensation Bill
In March 2008 the Commonwealth Senate Legal and Constitutional Affairs Committee undertook an inquiry into the Stolen Generation Compensation Bill 2008 (the Bill). The Bill was a private members bill, introduced by Senator Andrew Bartlett which proposed a compensation model for ex gratia payments to be made to Aboriginal and Torres Strait Islanders found to be eligible under the Bill.
The PILCH submission:
- supports the proposal to establish a Stolen Generations Tribunal and sees this a fundamental step in the reconciliation process;
- recommends a 10 year window for applications to be made to the Tribunal;
- recommends Tribunal power include the making of appropriate recommendations to the relevant Minister arising from oral testimony; and
- recommends the Committee consider how the Canadian reparations and healing scheme might be adapted to suit Australian circumstances.
Department of Justice Equal Opportunity Review
In November 2007, the Victorian Attorney General initiated an independent review of various aspects of the Equal Opportunity Act 1995 (Vic) (the EO Act). The review seeks to reform the EO Act to ‘better promote the right to equality and improve protection from discrimination’.
The PILCH submission draws on case examples in which PILCH has assisted by providing individuals with referrals to lawyers for pro bono representation and the feedback obtained through consultation with complainants, lawyers and heath professionals. Through this work PILCH has had first hand experience of dealing with a range of complaints by individuals who have endured some form of discriminatory behaviour and resultant harm.
The submission focussed on:
- the inadequacies and inherent power imbalances of the current complaint system;
- the need to widen the scope of the EO Act to provide broader powers to address systemic discrimination; and
- the need to expand the role of the VEOHRC to investigate and remedy discrimination and increase its capacity to undertake research for law reform purposes and conduct education and training.
In addition, the submission discusses problems associated with the use of internal grievance procedures by employers. PILCH’s experience is that these procedures are often inconsistent, insensitive and lead to unsatisfactory outcomes for the victim. The submission also addresses the use of confidentiality agreements, noting that the ‘overuse’ of confidentiality agreements leads to a lack of data regarding the incidence of discrimination in the community and a lack of jurisprudence in this area of the law.
PILCH’s submission was informed by principles of international human rights law and obligations on all States to ensure that they have legislation and policies in place that protect all people from discrimination and provide remedies where discrimination occurs.