EXPLANATORY STATEMENT
Racial Discrimination Regulations
Statutory Rules 1987 No. 185
Issued by the Authority of the Attorney-General
Section 47 of the Racial Discrimination Act 1975 (“the Act”) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 25T of the Act provides that a person summoned to appear before the Human Rights and Equal Opportunity Commission (“the Commission”) is entitled to be paid, in respect of the person’s attendance, fees and allowances for expenses, fixed by or in accordance with the regulations.
The effect of the Regulations is—to provide that the fees and allowances payable to a person under subsection 25T(1) of the Act are to be fixed by the Commission or the member of the Commission presiding at the inquiry in accordance with the scale in the Schedule to the Regulations. That scale generally reflects the fees and allowances which are specified in the Federal Court Rules.
Item 1 of the Schedule deals with attendance of expert witnesses, being persons summoned to give evidence because of their professional, scientific or other special skill or knowledge. Such a witness is to be paid in accordance with the scale specified in the Federal Court Rules for similar witnesses.
Item 2 of the Schedule deals with witnesses other than expert witnesses. These witnesses are to be paid the amount set in the Federal Court Rules and, in accordance, with those Rules, the amount payable will depend on whether the witness is a wage or salary earner or not.
Item 3 provides for payments of reasonable amounts for travel costs for a witness who lives more than 50 kilometres from the place where attendance is required and for payments for meals and accommodation if an overnight stay is necessary. Item 4 makes clear that, if a witness is attending before the Commission for more than one inquiry, that witness is only entitled to a proportion of the applicable fees and allowances for each of those inquiries.
Overview
The Racial Discrimination Regulations, Statutory Rules 1987 No. 185, were introduced to provide a structured framework for the payment of fees and allowances to individuals summoned to appear before the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975. This legislation was enacted by the Australian Parliament to address the problem of racial discrimination and to ensure that the processes for addressing such issues were both fair and efficiently managed. The policy objective behind these regulations is to facilitate the smooth functioning of the Commission by providing clear guidelines on the compensation to be provided to witnesses, thereby encouraging their participation in the inquiries.
These regulations were issued under the authority of the Attorney-General and are designed to be consistent with the broader aims of the Racial Discrimination Act. They establish a fee scale that aligns with the Federal Court Rules, ensuring that the compensation provided to witnesses is reasonable and reflective of the nature of their involvement. By setting these parameters, the regulations help to maintain the integrity and effectiveness of the legal processes aimed at combating racial discrimination in Australia.
Scope and Application
The Racial Discrimination Regulations, established under the authority of the Attorney-General, complement the provisions of the Racial Discrimination Act 1975, ensuring that its objectives are fully realised. These regulations apply to individuals and entities that are subject to the Act, which is designed to prohibit racial discrimination across various sectors, including employment, education, and the provision of goods and services. The Act applies on a national level, covering the entire Commonwealth of Australia. The Regulations, in particular, address the payment of fees and allowances for witnesses appearing before the Human Rights and Equal Opportunity Commission, ensuring that these payments are consistent with the Federal Court Rules. This ensures that expert and non-expert witnesses are compensated fairly for their time and expenses, aligning with the standards set for similar proceedings in the Federal Court. Additionally, the Regulations establish specific scales for travel, meals, and accommodation expenses, ensuring that these costs are reasonably covered for witnesses who travel significant distances or require overnight stays. This comprehensive approach ensures that the Act's intent to facilitate fair and effective proceedings is upheld, while also protecting the rights and interests of all parties involved.
Key Provisions
The Racial Discrimination Regulations 1987, issued under Section 47 of the Racial Discrimination Act 1975, establish the fees and allowances that are to be paid to individuals who are summoned to appear before the Human Rights and Equal Opportunity Commission. These regulations aim to ensure that the process of attending and participating in inquiries is both fair and accessible to all witnesses. Section 25T of the Act mandates that a person attending an inquiry is entitled to compensation for their attendance, and the Regulations specify that these fees and allowances are to be set in accordance with the scale outlined in the Schedule to the Regulations. This schedule generally mirrors the fees and allowances specified in the Federal Court Rules, ensuring consistency across different legal proceedings.
The obligations imposed by the Regulations are primarily on the Human Rights and Equal Opportunity Commission. The Commission is tasked with determining and paying the fees and allowances to witnesses in accordance with the prescribed scale. This includes making distinctions between different types of witnesses. For instance, under Item 1 of the Schedule, expert witnesses, who are summoned due to their professional or specialised knowledge, are compensated based on a scale similar to that applied to expert witnesses in the Federal Court Rules. Under Item 2, non-expert witnesses are compensated according to their employment status, aligning with the Federal Court Rules. Additionally, under Item 3, the Regulations provide for the reimbursement of travel costs for witnesses living more than 50 kilometres from the place of attendance, as well as payments for meals and accommodation if an overnight stay is required.
The Regulations do not explicitly outline specific offences or penalties for breaches. However, any failure by the Commission to adhere to the prescribed fees and allowances could potentially be considered a breach of the statutory requirements outlined in the Racial Discrimination Act 1975 and the Racial Discrimination Regulations 1987. Such a breach could lead to legal consequences, including the possibility of a witness challenging the adequacy of their compensation in court. While the Regulations themselves do not specify maximum penalties, any legal challenge or dispute arising from non-compliance could result in the courts imposing remedies or sanctions as appropriate under the law.