Page 3022 - Week 10 - Tuesday, 23 August 2005

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There are two insurmountable problems, in the view of the government, with these amendments. One is that to have commissioners with substantial independent functions would be stepping away from the combined commission model for statutory oversight that the government has chosen. Commissioners with independent statutory functions would work effectively only in a co-location model of statutory oversight.

If co-location is chosen as a model, there is no need for legislation to establish a combined commission; instead a group of independent statutory officeholders, each with individual functions, would be administratively co-located and would manage independent budgets. The commission model, which has been chosen by the government and established by the provisions in this bill, has all the statutory functions belonging to the commission but exercised on its behalf by specialist commissioners who themselves all play an equal part in determining how the commission would fulfil its statutory responsibilities.

The other problem, in the view of the government, is one of practicality. The commissioner who had separate statutory functions such as those proposed in these amendments would be unable to carry them out because no budget allocation has been made for any of the individual commissioners. The human rights commission would not be able to allow the commissioner to use its funds for the purpose because, like all government agencies, it would not be able to use its resources to act outside its statutory functions. If the proposed provision was passed, either the commissioner would have to carry out those functions on his or her own, without staff, or the government would have to provide additional finds to the commissioner separate from the funds allocated in the budget to the human rights commission.

Of course these amendments, in the government’s view, would not operate effectively with the other provisions in this bill. The government will oppose them; similarly, in relation to amendment 4, specifically, which has been moved.

I foreshadow that I will advance the same argument in relation to 5, 7 and 9 which, collectively, amend clause 21 (2), clause 23 (2), clause 25 (2) and clause 27 (2), respectively, of the bill. Those clauses provide that the functions carried out by commissioners on behalf of the human rights commission are subject to decisions by the human rights commission itself. It is essential to the integrity of the commission structure established in this bill that the human rights commission be able to take decisions about how it carries out its functions. The human rights commission has statutory responsibility for the oversight functions dealt with in the bill.

Although the bill contains provisions indicating that commissioners will generally carry out the functions of the human rights commission in their particular specialty area, it does not constrain the commission from deciding how it should carry out its statutory responsibility. The proposed amendment would do so. In effect, it would prevent the human rights commission properly carrying out the statutory responsibility given to it by preventing it deciding how to go about its business.

The explanation in the explanatory statement to the proposed amendments indicates a misunderstanding about the legal structure of the human rights commission, in that it suggests that the commissioners can be independent of the human rights commission in

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