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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE HUMAN RIGHTS LEGISLATION AMENDMENT BILL
2017
(Government)
GENERAL OUTLINE
1. The amendments to the Human Rights Legislation Amendment Bill 2017 ('the Bill')
make technical amendments relating to the complaints handling procedures of the Australian
Human Rights Commission (the Commission).
Complaints handling process
2. The amendments will address technical issues in the Bill to ensure that the
Government's policy intention in improving the Commission's complaints handling
procedures can be properly implemented and does not impose a disproportionate regulatory
or administrative burden on the Commission. The amendments will also ensure that
complainants, respondents, and the Commission itself, have a clear understanding of their
rights and obligations throughout the complaints handling process.
Application provisions
3. The amendments to the Bill's application provisions concerning complaints handling
procedures ensure that these items apply not only to complaints which are lodged after the
commencement of the Act, but also to complaints on foot at the time of the commencement
of the Act.
4. This will ensure that the changes to the Commission's complaints handling
procedures made by this Bill will begin from the day the Act commences.
5. These amendments will reduce the administrative burden on the Commission so that it
is not required to administer two separate complaints handling procedures concurrently.
Parties to a complaint lodged before the Act commences and parties to a complaint lodged
after the Act commences will be subject to the same process, with the same procedural
fairness requirements, throughout the inquiry and conciliation of their complaints.
6. These amendments will ensure that complainants and respondents are treated fairly
and equally no matter when their complaint was lodged, and that unmeritorious complaints
lodged prior to the commencement of the Act are not maintained. As the Bill requires the
Commission to accord procedural fairness to each party to a complaint, including by
appropriate notification of respondents and resolution of complaints in a timely manner, the
application of the amendments in the Bill to complaints lodged before and after
commencement will be beneficial to both complainants and respondents.
7. These amendments do not retrospectively invalidate any complaint or any decision or
procedure instituted by the Commission prior to commencement. They do not affect the legal
right of any person to proceed to the court for judicial determination.
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Outline of amendments
Complaints handling procedures
Termination of unlawful discrimination complaints and closing human rights and equal
opportunity in employment complaints
8. Amendments 1 and 2 remove the discretionary ground to close a human rights or
equal opportunity in employment complaint where the Commission is satisfied that there is
no reasonable prospect that the complaint will be resolved in favour of the complainant.
Where the Commission is of the opinion that there is no reasonable prospect, then the new
mandatory ground in Amendment 8 will apply.
9. Amendment 8 changes the language that there is no reasonable prospect that the
complaint will be resolved in favour of the complainant by substituting the requirement that
there is no reasonable prospect of the matter being settled by conciliation. This better
expresses the outcome of the complaints procedures, since complaints are not "resolved in
favour" of any party. The existing discretionary ground of no reasonable prospect of
conciliation in paragraph 46PH(1)(i) of the Australian Human Rights Commission Act 1986
(the Act) is repealed by Amendment 7.
10. Terminating or closing a complaint on the basis that the President is satisfied that
there is no reasonable prospect that the complaint would be resolved in favour of the
complainant was a ground considered insufficiently clear to be appropriately implemented by
the Commission. Requiring the President to terminate a complaint where he or she is satisfied
that there is no reasonable prospect of the matter being settled by conciliation will reflect the
intention that the Commission should not further inquire into complaints when it is clear that
the complaint cannot be settled to the satisfaction of both parties. To do so would be an
improper allocation of resources.
Threshold for making a complaint
11. Amendment 3 will clarify that a person making a complaint is only required to set out
the details of the alleged acts, omissions or practices as fully as is practicable.
Termination prior to inquiry
12. Amendment 4 will remove the requirement that the President have regard to all the
matters in section 46PH in coming to the opinion that a complaint should be terminated under
proposed paragraph 46PF(1)(b). This provides for a less burdensome application of the test.
13. The words 'having regard to any of the matters referred to in section 46PH' in
proposed paragraph 46PF(1)(b) were considered duplicative given the proposed insertion of
paragraph 46PF(1)(a) by Item 31 in the Bill.
14. As section 46PH (as amended) will specify the relevant grounds upon which a
complaint must or may be terminated, the President would have already apprised him or
herself of the possible basis upon which a complaint could be terminated.
Notification requirements
3
15. Amendment 5 will clarify the requirements for the President to notify:
- respondents
- persons against whom adverse allegations have been made and
- other individuals
of a complaint. Amendment 5 will omit subsections 46PF(7), (8) and (9) as inserted by
Item 36 and substitute new subsections 46PF(7), (8) and (9).
16. Proposed subsections 46PF(7) and (8) will clarify that the President is not required to
notify a respondent, a person against whom an adverse allegation is made or a person who is
likely to be able to provide information relevant to the complaint until the President has
decided to inquire into the complaint under section 46PF(1), as introduced by Item 31 of the
Bill. This will also ensure that the Commission is not required to notify respondents to
complaints which have been withdrawn prior to the initial consideration by the President.
This will reduce unnecessary stress on respondents in respect of whom complaints have been
made when inquiries into these complaints will not occur, because the complaint has been
terminated without inquiry. Subsection 46PF(8) clarifies that this notification must occur as
soon as the relevant decision or amendment of the complaint is made, or the President's
opinion arises.
17. Proposed paragraph 46PF(7)(c) will clarify that the President is only required to
notify a person against whom an adverse allegation is made of the adverse allegation itself,
rather than of the complaint. This will ensure that people are made aware of the specific
allegations against them, rather than all of the details of the complaint. In some cases, the
complaint may contain information which is irrelevant to the adverse allegation made against
an individual. This will also protect the privacy of complainants and respondents where the
complaint is not relevant to the adverse allegation made.
18. Proposed paragraph 46PF(7)(c) will also insert a new exemption to the requirement
for the President to notify persons who are the subject of adverse allegations. The President is
not required to notify the complaint to a person where the President is satisfied that it is not
practicable to do so. This will ensure that the President is not required to notify persons who,
for example, form part of a large class that an allegation is directed towards, such as all
members of the judiciary.
19. Proposed subsection 46PF(9) will define 'adverse allegation' as an allegation of
unlawful discrimination. This will ensure that the Commission is only required to notify
persons against whom allegations of unlawful discrimination are made, and is not required to
notify persons against whom allegations of other conduct are made. It would be inappropriate
for the Commission to have to notify persons who are the subject to other allegations, such as
an allegation of breach of contract.
20. Notification as required under these provisions will need to occur as soon as the
President has decided to inquire into a complaint, as soon as a complaint has been amended
or as soon as the President forms the opinion that a person is the subject of an adverse
allegation, as the case may be. This will prevent the situation occurring where respondents, or
persons against whom adverse allegations are made, are not notified of them for a period of
time.
4
Enforceability of the President's duty to act fairly and expeditiously
21. Amendment 6 will clarify that no legal rights will flow from a failure by the President
to resolve complaints in accordance with his or her duty to act fairly and expeditiously in new
subsections 46PF(6) and (10) respectively, other than a legally enforceable obligation to
observe the rules of natural justice.
22. This will replicate the provisions relating to the duty to act fairly and expeditiously in
relation to human rights and equal opportunity in employment complaints in Items 10 and 15
of the Bill respectively and ensure consistency across the Bill.
Leave of the court
23. Amendments 9 and 10 will broaden the exemptions to the requirement for an
applicant to seek the leave of the Federal Court or the Federal Circuit Court to make an
application alleging unlawful discrimination. These amendments will provide that applicants
whose complaints have been terminated on the basis that there is no reasonable prospect of
the matter being settled by conciliation will not be required to seek the leave of the Federal
Court or the Federal Circuit Court.
24. These amendments will reflect that termination on the basis of no reasonable prospect
of conciliation does not reflect the merit of the complaint. As such, these amendments will
ensure that there are not additional barriers for meritorious complaints to access the Federal
Court or the Federal Circuit Court.
Costs
25. Amendment 11 will broaden the discretion for the Federal Court or the Federal
Circuit Court to consider rejected settlement offers. Amendment 11 specifies that the court
may consider rejected settlement offers made by both respondents and applicants, rather than
solely offers made by respondents. This will ensure that neither party may obstruct the
resolution of a complaint or an application to the court without the potential consequence of
costs being awarded against them.
Application provisions
26. Amendment 12 will provide for the application of two sets of items in the Bill:
- items relating to the making of complaints; and
- items relating to the handling of complaints.
27. As a general rule, items in the Bill relating to the making of complaints to the
Commission will apply in relation to complaints lodged after commencement of the Act. This
will ensure that there is no risk that complaints that have already been made to the
Commission are retrospectively invalidated because they would not satisfy the requirements
(as amended by the Bill) for lodging a complaint.
28. Amendments relating to the handling of complaints will apply to complaints currently
before the Commission. The proposed Government amendments will also contain a number
of transitional provisions to ensure that, among other issues, complaints or procedures
5
currently on foot are not retrospectively invalidated because the relevant provisions have now
been repealed and replaced (such as provisions regarding compulsory conferences).
FINANCIAL IMPACT
29. The amendments will have a nil or insignificant financial impact on Commonwealth
Government departments and agencies.
6
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Human Rights Legislation Amendment Bill 2017
30. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
31. The amendments amend provisions in the Human Rights Legislation Amendment
Bill 2017 (the Bill) relating to the complaints handling procedures of the Australian Human
Rights Commission (the Commission).
Complaints handling procedures
32. The amendments address technical issues in the Human Rights Legislation
Amendment Bill (the Bill).
33. The amendments:
- replace the term 'resolved in favour of the complainant' with 'settled by
conciliation' in the mandatory ground for termination of unlawful discrimination
complaints (Amendments 7 and 8)
- remove the discretionary grounds for closing human rights and equal opportunity
complaints where the President is satisfied that there is no reasonable prospect that
the complaint will be resolved in favour of the complainant (Amendments 1
and 2)
- clarify that a potential complainant is only required to set out the details of an
alleged, act, omission or practice as fully as practicable (Amendment 3)
- clarify that the President's duties to act fairly and use best endeavors to finalise
complaints within 12 months are not enforceable in court, save for the legally
enforceable obligation to observe the rules of natural justice (Amendment 6)
- clarify that the President's duty to notify:
o a respondent
o any person other than the respondent who is the subject of an adverse
allegation, or
o any person who is likely to be able to provide information relevant to the
complaint
- only arises as soon as the President has decided to inquire into a complaint in
accordance with subsection 46P(1) (Amendment 5)
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- remove the requirement that the President is required to have regard to all of the
matters in section 46PH in coming to the opinion that a complaint should be
terminated under subsection 46PF(1) (Amendment 4)
- provide greater specificity to the requirement to notify a complaint to a person
who is the subject of an adverse allegation, including by:
o providing that the adverse allegation must be an allegation of unlawful
discrimination
o exempting notification where it is not practicable to do so; and
- requiring the President only to notify that person of the allegation itself, rather
than of the complaint (Amendment 5)
- remove the requirement for complaints terminated by reason that there was no
reasonable prospect of the matter being settled by conciliation to seek leave of the
court to make an application under section 46PO (Amendments 9 and 10); and
- ensure that the Federal Courts can consider rejected settlement offers by both
applicants and respondents when determining whether to make a costs order
(Amendment 11)
Application provisions
34. Amendment 12 provides for the application of two sets of items in the Bill:
ï€- items relating to the making of complaints; and
ï€- items relating to the handling of complaints.
35. As a general rule, items in the Bill relating to the making of complaints to the
Commission will apply in relation to complaints lodged after commencement of the Act. This
will ensure that there is no risk that complaints that have already been made to the
Commission are retrospectively invalidated because they would not satisfy the requirements
(as amended by the Bill) for lodging a complaint.
36. Amendments relating to the handling of complaints will apply to complaints made to
the Commission before or after commencement of the Act. In the context of discretionary
tabling of human rights and equal opportunity in employment reports, the amendments will
apply to inquiries that are completed before or after the commencement of the Act.
37. The proposed Government amendments will also contain a number of transitional
provisions to ensure that, among other issues, complaints or procedures currently on foot are
not retrospectively invalidated because the relevant provisions have now been repealed and
replaced (such as provisions regarding compulsory conferences).
8
Human rights implications
38. The amendments to the provisions relating to complaints handling procedures in the
Bill engage the following rights and freedoms:
ï€- the right to an effective remedy; and
ï€- the right to a fair hearing.
Right to a fair hearing
39. Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)
requires States Parties to ensure that, where a person's rights or freedoms under the ICCPR
are violated, they have access to an effective and enforceable remedy determined by
competent judicial, administrative or legislative authorities. Similarly, Article 6 of the
Convention on the Elimination of All Forms of Racial Discrimination (CERD) provides that
effective protection and remedies should be available through a national tribunal or other
State institution against any acts of racial discrimination which violate a person's human
rights or fundamental freedoms under the CERD.
40. The right to an effective remedy encompasses an obligation to ensure human rights
abuses, including discrimination, are addressed and to provide appropriate reparation to
victims. Examples of reparation include compensation, restitution, rehabilitation, public
apologies, guarantees of non-repetition and changes in relevant laws and practices. The
Commission's complaints handling process provides for a number of remedies for individuals
who have been the subject of unlawful discrimination in accordance with the Racial
Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act
1992 and the Age Discrimination Act 2004. The Commission's conciliation function allows
complainants and respondents to mutually agree to appropriate remedies for the relevant
conduct. Examples of outcomes previously conciliated by the Commission include apologies,
monetary compensation and systemic changes, such as changes to employment policies or
anti-discrimination training. The proposed amendments will not limit the ability of
individuals who have been subject to unlawful discrimination to seek these remedies.
41. The amendments in the Bill requiring complainants to seek leave of the Courts to
make an application alleging unlawful discrimination in certain circumstances do not limit
the right to an effective remedy. In the event that a complaint is terminated by the
Commission, the complainant may apply to the courts for an enforceable remedy. These
amendments broaden the grounds of termination under which an applicant is not required to
seek the leave of the court under the Bill. Amendments 9 and 10 provide that applicants
whose complaint was terminated on the basis that there was no reasonable prospect that the
matter would be settled by conciliation are not required to seek leave of the courts to make an
application alleging unlawful discrimination.
42. These amendments do not limit access to an effective and enforceable remedy for
persons whose rights to equality and non-discrimination under article 26 of the ICCPR have
been violated. Access to an effective and enforceable remedy is maintained through the
Commission's inquiry and conciliation function and the courts ability to make a
determination. The amendments to the application provisions do not retrospectively
invalidate any complaint lodged to the Commission, any procedure already initiated by the
Commission or any application to the Federal Court or Federal Circuit Court.
9
Right to a fair hearing
43. Article 14 of the ICCPR provides that all people are to be equal before courts and
tribunals and that everyone, in the determination of rights and obligations in civil
proceedings, is entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.
44. The amendment in the Bill requiring complainants to seek leave of the courts to make
an application alleging unlawful discrimination in certain circumstances does not limit the
right to an effective remedy. In the event that a complaint is terminated by the Commission,
the complainant may apply to the courts for a determination of their rights and obligations
regarding the alleged unlawful discrimination. These amendments broaden the grounds of
termination under which an applicant is not required to seek the leave of the court under the
Bill. Amendments 9 and 10 provide that applicants whose complaint was terminated on the
basis that there was no reasonable prospect that the matter would be settled by conciliation
are not required to seek leave of the courts to make an application alleging unlawful
discrimination.
45. These amendments which require complainants to seek leave of the Federal Court and
Federal Circuit Court from the date of commencement to make an application alleging
unlawful discrimination in certain circumstances does not limit the right to an effective
remedy. In the event that a complaint is terminated by the Commission, the complainant may
apply to the Courts for a determination of their rights and obligations regarding the alleged
unlawful discrimination.
Conclusion
46. The amendments are compatible with human rights because they do not limit the
rights to effective remedy and fair hearing.
10
NOTES ON AMENDMENTS
Amendment 1: Schedule 2, item 9, page 5 (lines 23 to 25)
47. Amendment 1 omits the discretionary ground for closing human rights complaints
where the Commission is of the opinion that there is no reasonable prospect that the
complaint will be resolved in favour of the complainant or complainants, as introduced in
subparagraph 20(2)(c)(iia) in Item 9 of the Bill.
48. The discretionary ground of closing human rights complaints where the Commission
is satisfied that there is no reasonable prospect of the matter being settled by conciliation will
be maintained in Item 9. This will ensure that complaints which the Commission is satisfied
cannot be settled to the satisfaction of both parties are not subject to further inquiry.
Amendment 2: Schedule 2, item 14, page 7 (lines 3 to 5)
49. Amendment 2 omits the discretionary ground for closing equal opportunity in
employment complaints where the Commission is of the opinion that there is no reasonable
prospect that the complaint will be resolved in favour of the complainant or complainants, as
introduced in subparagraph 32(3)(c)(iia) in Item 14 of the Bill.
50. The discretionary ground for closing equal opportunity in employment complaints
where the Commission is satisfied that there is no reasonable prospect of the matter being
settled by conciliation will be maintained in Item 14. This will ensure that complaints which
the Commission is satisfied cannot be settled to the satisfaction of both parties are not subject
to further inquiry.
Amendment 3: Schedule 2, item 27, page 9 (line 29)
51. Amendment 3 amends subsection 46P(1A) as inserted by Item 27 of the Bill.
52. Subsection 46P(1A) provides that in order to make a valid complaint, the complaint
must set 'the details of the alleged acts, omissions or practices'. Amendment 3 clarifies that a
person making a complaint is only required to set out the details of the alleged acts,
omissions or practices as fully as practicable.
Amendment 4: Schedule 2, item 31, page 10 (lines 14 and 15)
53. Amendment 4 amends paragraph 46PF(1)(b) as inserted by Item 31 of the Bill.
Item 31 requires the President of the Commission to consider whether a complaint should be
terminated under the grounds of termination in section 46PH of the AHRC Act before
starting to inquire into a complaint.
54. Amendment 4 addresses duplicative language by omitting the requirement that the
President have regard to the matters in section 46PH in coming to the opinion that a
complaint should be terminated under proposed paragraph 46PF(1)(b). The President must
have regard to the matters in section 46PH when considering whether to inquire into the
complaint under paragraph 46PF(1)(a).
11
Amendment 5: Schedule 2, item 36, page 11 (lines 12 to 26)
55. Proposed subsection 46PF(7) requires the President to notify specified persons if the
President has decided to inquire into a complaint under section 46PF(1).
56. Proposed paragraph 46PF(7)(a) requires the President to notify the complaint to the
respondent, unless the President is satisfied that notification would be likely to prejudice the
safety of a person.
57. Proposed paragraph 46PF(7)(b) requires that, if a complaint is amended under
subsection 46PF(3) by adding a respondent, the President must notify the complaint to that
respondent, unless the President is satisfied that notification would be likely to prejudice the
safety of a person.
58. Proposed paragraph 46PF(7)(c) requires the President to notify any person, other than
the respondent, who is the subject of an adverse allegation arising from the complaint of the
adverse allegation. Paragraph 46PF(7)(c) will clarify that the President is only required to
notify a person against whom an adverse allegation is made of the adverse allegation itself,
rather than of the complaint. Paragraph 46PF(7)(c) will also contain a new exemption to the
requirement for the President to notify persons who are the subject of adverse allegations.
The President is not required to notify the complaint to a person where the President is
satisfied that it is not practicable to do so. This is in addition to the exemption where
notification would be likely to prejudice the safety of a person.
59. Proposed paragraph 46PF(7)(d) provides the President with discretion to notify the
complaint to any person who, in the opinion of the President, is likely to be able to provide
information relevant to the complaint.
60. Proposed subsection 46PF(8) specifies the requirements as to when the President must
notify a respondent, additional respondent or person who is the subject of an adverse
allegation.
61. Proposed paragraph 46PF(8)(a) specifies that the President must notify a respondent
as soon as the President has decided to inquire into the complaint under section 46PF(1).
62. Proposed paragraph 46PF(8)(b) specifies that the President must notify an additional
respondent to a complaint as soon as the complaint has been amended under
subsection 46PF(3).
63. Proposed paragraph 46PF(8)(c) specifies that the President is required to notify a
person who is the subject of an adverse allegation arising from the complaint as soon as the
President forms the opinion that the person is the subject of an adverse allegation.
64. Proposed subsection 46PF(9) defines 'adverse allegation' for the purposes of
subsections 46PF(7) and (8). Subsection 46PF(9) defines 'adverse allegation' as an allegation
of unlawful discrimination. This will ensure that the Commission is only required to notify
persons against whom allegations of unlawful discrimination are made, and is not required to
notify persons against whom allegations of other conduct are made.
12
Amendment 6: Schedule 2, item 36, page 12 (after line 3), after subsection (10)
65. Amendment 6 inserts new subsections 46PF(11) and 46PF(12) which clarify that no
legal rights will flow from a failure by the President to resolve complaints in accordance with
his or her duty to act fairly and expeditiously in subsections 46PF(6) and (10) respectively, as
introduced by Item 36 of the Bill, other than a legally enforceable obligation to observe the
rules of natural justice.
66. This will replicate the provisions relating to the duty to act fairly and expeditiously in
relation to human rights and equal opportunity in employment complaints in Items 10 and 15
of the Bill respectively.
Amendment 7: Schedule 2, page 12 (after line 19), after item 41
67. Amendment 7 repeals the current discretionary ground of termination for unlawful
discrimination complaints where the President is satisfied that there is no reasonable prospect
of the matter being settled by conciliation under paragraph 46PH(1)(i) of the Act. This
ground of termination is introduced as a mandatory ground of termination by Amendment 8.
Amendment 8: Schedule 2, item 43, page 13 (lines 6 and 7)
68. Amendment 8 omits the mandatory ground of termination for unlawful discrimination
complaints where the President is of the opinion that there is no reasonable prospect that the
complaint will be resolved in favour of the complainant or complainants, as introduced by
paragraph 46PH(1B)(b) in Item 43 of the Bill.
69. Amendment 8 introduces a new paragraph 46PH(1B)(b) which requires the President
terminate a complaint if the President is satisfied that there is no reasonable prospect of the
matter being settled by conciliation. This substitutes the current discretionary ground of
termination under paragraph 46PH(1)(i) of the Act which is repealed by Amendment 7.
Amendment 9: Schedule 2, item 53, page 16 (line 21)
70. Amendment 9 is consequential to Amendment 10. Amendment 9 omits '46PH(1)(h).'
from paragraph 46PO(3A)(b) and substitutes '46PH(1)(h); or'.
Amendment 10: Schedule 2, item 53, page 16 (after line 21),
71. Amendment 10 inserts a new paragraph in subsection 46PO(3A) as introduced by
Item 53 of the Bill. New paragraph 46PO(3A)(c) provides that complaints which are
terminated under paragraph 46PH(1B)(b) as introduced by Amendment 8, will not be
required to seek leave of the court to make an application alleging unlawful discrimination.
Amendment 11: Schedule 2, item 57, page 17 (line 11)
72. Amendment 11 amends paragraph 46PSA(b) as introduced by Item 57 of the Bill.
Amendment 11 omits 'the respondent' from paragraph 46PSA(b) and substitutes 'an
applicant or respondent'. This will provide the court, or a judge of the court, with the ability
to have regard to settlement offers made by both applicants and respondents, which were later
rejected, in deciding whether to award costs in the proceedings.
13
Amendment 12: Schedule 2, item 58, page 17 (line 22) to page 19 (line 3)
73. The amendments replace the current application provisions in Item 58 of the Bill.
Item 58
Functions relating to human rights and equal opportunity in employment
74. Clause (1) provides for the application of amendments made by Items 9 and 14
relating to new discretionary grounds of termination for inquiries arising out of human rights
and equal opportunity in employment complaints. These amendments will apply to
complaints made before or after the commencement of the Act (the day after Royal Assent).
75. Clause (2) provides for the application of subsection 20(10) as amended by the Act.
This amendment introduces an obligation for the Commission to act expeditiously in dealing
with a human rights complaint and to use its best endeavours to finish dealing with the
complaint within 12 months. This amendment applies to a complaint made after the
commencement of the Act (the day after Royal Assent). The application of this amendment
in relation to pre-commencement complaints is provided for by Item 58A.
76. Clause (3) provides for the application of subsection 32(5) as amended by the Act.
This amendment introduces an obligation for the Commission to act expeditiously in dealing
with an equal opportunity in employment complaint and use its best endeavours to finish
dealing with the complaint within 12 months. This amendment applies to a complaint made
after the commencement of the Act (the day after Royal Assent). The application of this
amendment in relation to pre-commencement complaints is provided for by Item 58A.
77. Items 6 and 12 repeal and replace paragraphs 11(1)(f) and 31(b) to remove the
mandatory duty to provide a report to the Minister in relation to human rights inquiries and
equal opportunity in employment inquiries respectively. Clause (4) provides that the
amendments made by Items 6 and 12 do not affect the continuity of an inquiry that began
before commencement or an endeavour, by conciliation, to effect a settlement of the matters
that gave rise to an inquiry that began before commencement of the Act (the day after Royal
Assent). This will ensure that inquiries and conciliations conducted under paragraphs 11(1)(f)
and 31(b) are not retrospectively invalidated.
78. Clause (5) provides for the application of section 20A as introduced by the Act.
Section 20A is introduced by Item 11 and replaces the mandatory duty to report to the
Minister with discretion to report to the Minister regarding human rights inquiries. The
President's discretion to report to the Minister will apply to a human rights inquiry that was
completed before or after the commencement of the Act (the day after Royal Assent).
79. Clause (6) provides for the application of section 32A as introduced by the Act.
Section 20A is introduced by Item 16 and replaces the mandatory duty to report to the
Minister with discretion to report to the Minister regarding equal opportunity in employment
inquiries. The President's discretion to report to the Minister will apply to an equal
opportunity in employment inquiry that was completed before or after the commencement of
the Act (the day after Royal Assent).
14
Complaints relating to unlawful discrimination
80. Clause (7) provides for the application of amendments made by Item 36 (except so far
as that item inserts subsection 46PF(10)) and Items 37, 39, 41, 41A, 41B, 42-46 and 48.
These items relate to the handling of complaints by the Commission, including the duty of the
President to act fairly and notify respondents and other persons, and the introduction of new
discretionary and mandatory grounds of termination. This does not include Item 36 so far as
it inserts the duty of the President to act expeditiously under new subsection 46PF(10). These
amendments will apply to a complaint lodged before or after the commencement of the Act
(the day after Royal Assent).
81. Item 39 reduces the discretionary ground of termination for out of time complaints
from 12 months to six months. Clause (7) provides that this ground of termination will apply
to complaints lodged before or after the commencement of the Act. As this ground of
termination is discretionary, it will not require that complaints lodged between 6 and 12
months of the conduct prior to commencement be terminated. It will also not require the
termination of complaints which have not yet been lodged where the conduct occurred
between 6 and 12 months prior to lodgement. Rather, the President must exercise his or her
discretion to terminate such complaints in a manner consistent with the principles of
procedural fairness. If a complaint is terminated under this ground, the complainant maintains
the ability to apply to the Federal Court or the Federal Circuit Court or judicial determination
of the alleged acts, omissions or practices.
82. Clause (8) provides for the application of subsection 46PF(10) as introduced by the
Act. Subsection 46PF(10) is introduced by Item 36 and introduces a duty for the President to
act expeditiously in dealing with a complaint and to use the President's best endeavours to
finish dealing with the complaint within 12 months. This amendment will apply to complaints
lodged after the commencement of the Act (the day after Royal Assent). The application of
this amendment in relation to pre-commencement complaints is provided for by Item 58A.
83. Clause (9) clarifies the application of subsection 46PH(1C), as introduced by Item 43,
to complaints lodged before the commencement of the Act. Subsection 46PH(1C) introduces
a mandatory ground of termination if the President is satisfied that there would be no
reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that
the alleged acts, omissions or practices are unlawful discrimination. Clause (9) specifies that
subsection 46PH(1C) has effect in relation to a complaint lodged pre-commencement as if
'the alleged acts, omissions or practices are' were omitted and substituted with 'the alleged
unlawful discrimination is'. This will ensure that complaints which are lodged under the
section 46P, which uses the terminology of 'alleged unlawful discrimination' are able to be
terminated under this ground.
84. Clause (10) provides for the application of amendments made by Item 49 (except so
far as that item inserts section 46PKA) and Items 50 and 51. Item 49 repeals and replaces
existing sections 46PJ and 46PK to broaden the application of legislative proscriptions
regarding compulsory conciliation conferences to include voluntary conciliation conferences.
Items 50 and 51 are consequential to Item 49. These amendments will apply to a complaint
lodged after commencement or a complaint lodged before the commencement of this Act, so
long as the President did not decide, before the commencement of this Act, to hold a
conference for the purpose of attempting to conciliate the complaint. This will ensure that
15
compulsory conferences currently on foot are not invalidated by reason of the repeal of
existing sections 46PJ and 46PK.
85. Clause (11) provides for the application of section 46PKA as introduced by the Act.
Section 46PKA is introduced by Item 49 and provides that anything said or done in the
course of conciliating a complaint is not admissible in evidence in any proceedings relating to
the alleged acts, omissions or practices. Clause (11) provides that section 46PKA applies in
relation to anything said or done by a person after the commencement of this item.
86. Clause (12) provides for the application of amendments made by Items 1, 2, 27, 28,
32, 33, 35, 38 and 40. Item 27 raises the threshold for lodging complaints with the
Commission, and Items 1, 2, 28, 32, 33, 35, 38 and 40 are consequential to Item 27. These
amendments will apply in relation to complaints lodged after the commencement of the Act
(the day after Royal Assent). This will ensure that complaints already lodged are not
retrospectively invalidated.
87. Clause (13) provides for the application of amendments made by Item 31. Item 31
introduces a requirement for the President to consider whether a complaint should be
terminated prior to inquiring into the complaint. This amendment will apply to a complaint
lodged after commencement of this Act or a complaint lodged before the commencement of
this Act so long as the President did not start to inquire into the complaint before the
commencement of this Act. This will ensure that the President is not required to re-examine
all complaints which are already the subject of inquiry.
88. Clause (14) provides for the application of amendments made by Items 30 and 47.
These amendments require the President to include a statement regarding the costs
jurisdiction of the Federal Court or the Federal Circuit Court in a notice of termination. These
amendments will apply to a notice given after the commencement of this Act (the day after
Royal Assent). This will ensure that notices given prior to commencement are not
retrospectively invalidated.
89. Clause (15) provides for the application of amendments made by Items 53 and 57.
Item 53 introduces a requirement for the Federal Court or Federal Circuit Court to grant leave
to make an application alleging unlawful discrimination. Item 57 provides that the court may,
in exercising its discretion to award costs in an unlawful discrimination proceeding, consider
previous rejected offers to settle the matter. These amendments apply in relation to an
application made to the Federal Court or the Federal Circuit Court under section 46PO after
the commencement of this Act (the day after Royal Assent).
Item 58A
Functions relating to human rights and equal opportunity
90. Clause (1) provides for the application of subsections 20(10) and 32(5) to
pre-commencement complaints.
91. Clause (1) provides that if a complaint was made under paragraph 20(1)(b) relating to
human rights inquiries or paragraph 32(1)(b) relating to equal opportunity in employment
inquiries before the commencement of the Act, the Commission must accept expeditiously in
dealing with the complaint and must use the Commission's best endeavours to finish dealing
with the complaint within 12 months after the commencement of the Act.
16
92. Clause (2) provides that this requirement does not impose a duty on the Commission
that is enforceable in court. This is consistent with subsection 20(11) in Item 10 and
subsection 32(6) in Item 15.
Complaints relating to unlawful discrimination
93. Clauses (3) and (4) provides for the application of subsections 46PF(10) to
pre-commencement complaints.
94. Clause (3) provides that if a complaint was lodged under section 46P and referred to
the President under section 46PD, the President must, having regard to the nature of the
complaint and the needs of the complainants and respondents, act expeditiously in dealing
with the complaint and must use the President's best endeavours to finish dealing with the
complaint within 12 months after the commencement of the Act.
95. Clause (4) provides that this requirement does not impose a duty on the Commission
that is enforceable in court. This is consistent with Amendment 6.
96. Clauses (5) and (6) provide for the application of the notification requirements in
Amendment 5 to complaints lodged before the commencement of the Act.
97. Clause (5) requires that, if the President had decided to inquire into a complaint
lodged before the commencement of the Act and had not finished dealing with the complaint
before commencement, the President is required to notify specified people.
98. Subclause (5)(e) requires that if the President did not notify the complaint to the
respondent prior to commencement, the President must notify the complaint to the respondent
as soon as the Act commences, unless the President is satisfied that notification would be
likely to prejudice the safety of a person.
99. Subclause (5)(f) requires that if a complaint was amended by adding a respondent
under subsection 46PF(3) of the Act and the President did not notify that respondent prior to
commencement, the President must notify the complaint to that respondent as soon as the Act
commences, unless the President is satisfied that notification would be likely to prejudice the
safety of a person.
100. Subclause (5)(g) requires that if any person is the subject of an adverse allegation
arising from the complaint and the President did not notify that person prior to
commencement, the President must notify that person of the adverse allegation as soon as the
Act commences, unless the President is satisfied that notification would be likely to prejudice
the safety of a person or it is not practicable to do so.
101. Subclause (5)(h) requires that if there is a person who, in the opinion of the President,
is likely to be able to provide information relevant to the complaint, and the President did not
notify that person prior to commencement, the President may notify the complaint to that
person.
102. Clause (6) defines 'adverse allegation' for the purpose of these requirements as an
allegation of unlawful discrimination
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