If I was charged with a crime I would not be happy. If after the charging I was told that my case would not be heard in the normal justice system but rather it would be managed and decided by three random citizens I would be apoplectic.
Yet this is the situation faced by anybody who is accused of discrimination. Under the Human Rights Act we have set up a shadow justice system to deal with discrimination complaints, a system which is free for the complainant, expensive for the accused and overseen by citizens appointed by government rather than judges.
I would suggest that there must be a better way to structure our human rights system to strike a better balance between access to justice for those discriminated against and an accused’s rights to a fair hearing.
The shadow system currently works as follows: a complaint is made to the human rights commission which then conducts an investigation. The human rights commission weighs the results of the investigation to determine whether a hearing is required, or if the complaint should be dismissed.
If a hearing is required, it goes before a different body, the human rights tribunal, for hearing of evidence and determination.
The first issue with the current system is that of cost. The complainant need only lodge a complaint, and then the commission does the rest of the work free of charge. The commission completes the investigation, determines if a hearing is warranted, and has a lawyer advance the complainant’s case in the event of a hearing.
The accused is left to their own devices, meaning they must hire their own counsel to defend the accusation. Individuals are essentially incentivized to pursue an issue through the free human rights commission rather than the courts.
I commonly advise employers who are faced with a hearing to just pay whatever amount requested by the human rights commission to make a complaint go away, as the cost of a hearing will ultimately be more expensive than a settlement, regardless of the merit of the claim.
The second issue is that of fairness of hearing. Judges are professional triers of fact who are steeped in the rules of court (of which there are many). There is a question of whether a tribunal struck of citizens can provide the fairness and soundness of procedure found in a court.
The composition of the human rights tribunal is also a question, as it is not beyond the pale to think that individuals who apply to sit on a human rights panel may be more predisposed to sniffing out discrimination than a judge. If we set up a panel of individuals to oversee DUI charges, I would imagine that the type of person who would be interested in that position would be those with a tougher view on suspected drunk drivers rather than more lenient.
The third and perhaps most pressing issue is that of setting the boundaries of our society. The issues that are tried before human rights tribunals are those central to our civil society, such as free speech. I would suggest that perhaps the boundaries of free speech should not be set by a random panel of citizens, but rather by the legislature and the courts. The curtailing of our civil liberties must be treated with the utmost of importance and should rightfully be subject to our formal court system.
Given the above, I suggest we do away with the human rights commission in full. The issues being dealt with are too important to the accused and society as a whole to be put in the hands of an ad hoc body. Yet with this abolition we also need to ensure that there is a doorway into the formal justice system for individuals who face discrimination.
The human rights commission receives funding through a contribution agreement with the Department of Justice. The 2013/2014 budget calls for $665,000. A more efficient way to meet the needs of individuals would be to instead park $500,000 a year into a bank account with provisions that allow individuals with discrimination suits to access the fund to hire a lawyer to pursue their cases.
There would be certain criteria in place for access, much like legal aid, but it would ensure that individuals who are on the margins of society would have access to the justice system. Accused could also apply, to level the playing field and ensure a balance. We would have to build safeguards into the system so that lawyers have incentives to drop weak cases, but that is simply a matter of setting up payment structures and awards for costs.
This would have three big advantages. It would take the decision-making out of a committee’s hands and puts it in the hands of judges. It would provide access to justice to those who need it. And it would streamline the process and create a cheaper system: instead of a complaint making its way through an investigation, a commission and then a panel of adjudicators, a complaint is put into one court system with one judge to oversee the matter.
At the end of the day we have a population of 30,000 people with two justice systems in place. There has to be a more efficient way in which to approach the issue of discrimination in our territory.
Graham Lang is a Whitehorse lawyer.