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2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
SENATE TO THE BILL AS INTRODUCED AND SUPERSEDES THE EXPLANATORY
MEMORANDUM TABLED IN THE SENATE
HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2017
GENERAL OUTLINE
Purpose and objective
1. The Human Rights Legislation Amendment Bill 2017 (the Bill) contains measures to
amend the complaints handling processes of the Australian Human Rights Commission (the
Commission) under the Australian Human Rights Commission Act 1986 (the AHRC Act)
and to make minor amendments to the AHRC Act sought by the Commission to enhance its
operation and efficiency.
2. The amendments in relation to complaints handling processes give effect to the
majority of the recommendations of the Parliamentary Joint Committee on Human Rights
(PJCHR) in its report on Freedom of Speech in Australia, which was tabled in the Parliament
on 28 February 2017.
3. The Bill will amend the AHRC Act to ensure that the Commission's processes are fair
to all the parties, and unmeritorious complaints cannot proceed to the courts.
4. Resolving complaints of unlawful discrimination is one of the Commission's most
important roles. The successful functioning of the Commission provides access to justice for
the most disadvantaged members of Australian society, reduces the burden on the courts and
plays an educative role in enabling individuals and organisations to better understand their
rights and responsibilities.
5. However, the Commission's model needs to be improved to ensure that people
against whom complaints are made are treated fairly and that inappropriate claims are
identified and eliminated at the threshold. The amendments in this Bill will rectify these
irregularities.
6. The amendments in this Bill will apply to all unlawful discrimination complaints
made to the Commission.
7. The Bill will amend the AHRC Act to ensure that unmeritorious complaints are
discouraged or dismissed at each stage of the complaints handling process, from lodgement
to inquiry to proceeding to the Federal Court or Federal Circuit Court. The amendments will
ensure the Commission accords procedural fairness to each party to a complaint, including
by requiring the Commission to appropriately notify respondents of the existence of a
complaint against them, and requiring the Commission to resolve complaints in a timely
manner.
8. The Bill will also amend the AHRC Act in line with recommendations made by the
Commission itself. These will have the effect of reducing its regulatory and administrative
burden, reforming reporting requirements and clarifying the Commission's conciliation
process and governance arrangements.
9. The amendments in this Bill will restore public confidence in the Commission's
processes, and thereby in the Commission itself. They will bring certainty to complainants
and respondents to complaints of unlawful discrimination, and ensure that all parties to a
complaint are accorded procedural fairness.
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Background
Parliamentary Joint Committee on Human Rights Inquiry into Freedom of Speech in
Australia
10. On 8 November 2016, the Attorney-General asked the PJCHR to inquire into and
report on two issues relating to freedom of speech in Australia.
11. This reference was made in response to growing public concern about matters
including the complaints handling procedures of the Commission. This concern arose
following a number of high-profile cases before the Commission, including those arising
from complaints against the broadcaster Andrew Bolt, the late cartoonist Bill Leak, and
students at the Queensland University of Technology.
12. The PJCHR's report was tabled on 28 February 2017. The report was the result of
extensive public consultation, including consideration of approximately 11,460 items
(submissions, form letters and other pieces of correspondence) as well as nine public
hearings held in the capital city of each state and territory.
13. The majority report made 22 recommendations, 18 of which relate to the
Commission's complaints handling process. The report acknowledged the need to reform
aspects of the Commission's complaints handling processes, noting community concern
about the Commission's ability to appropriately address unmeritorious complaints. The
report also reflected a view that the complaints handling process is currently weighted in
favour of complainants.
14. The amendments made by this Bill will implement recommendations 5, 6, 7, 8, 9, 12,
13, 14, 15, 18, and 19 of the PJCHR report.
Outline of the Bill
Schedules 2 and 3 - Amendments to the Australian Human Rights Commission Act 1986 and
the Native Title Act 1993
Amendments in response to the PJCHR Report
15. The following amendments in the Bill will respond to the recommendations of the
PJCHR as listed below.
16. Principles for dispute resolution and timeframes for resolution of complaints -
Items 10, 15 and 36 will introduce principles applicable to the Commission's complaints and
inquiry procedures. These amendments will implement PJCHR recommendations 6, 7 and 8.
17. While the majority of the Commission's complaints are finalised within six months of
lodgement, the PJCHR heard evidence detailing examples of lengthy complaints processes
and delays.
18. Items 10 and 15 will introduce requirements for the Commission to act fairly and
expeditiously in relation to its human rights inquiry and equal opportunity in employment
inquiry functions. Item 36 will introduce requirements for the Commission to act fairly and
expeditiously in relation to its unlawful discrimination functions, which includes complaints
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made under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the
Disability Discrimination Act 1992 and the Age Discrimination Act 2004.
19. These amendments will oblige the President to act fairly, including towards
complainants and respondents, in the course of inquiring into and attempting to conciliate a
complaint. The requirement to act fairly includes offering reasonable assistance to
complainants and respondents. An example of such assistance would be helping a person
with disability to transcribe information. It is not intended to extend to the provision of legal
advice. Although principles of natural justice and procedural fairness already apply to the
President's handling of complaints at all stages, the amendments make the President's
obligation to act fairly to all parties clear on the face of the AHRC Act.
20. The amendments will also oblige the President or the Commission to act
expeditiously when dealing with complaints, and to use best endeavours to finish dealing
with complaints within 12 months.
21. These amendments will provide a clear legislative imperative to continue to ensure
that complaints are finalised quickly, and to avoid protracted processes for complainants and
respondents.
22. Notification of respondents - Item 36 will introduce mandatory requirements for the
President to notify respondents to a complaint. This amendment will implement PJCHR
recommendation 5.
23. The AHRC Act currently has no legislative requirement that the respondents to a
complaint be notified until the conciliation conference stage, and only then in relation to
compulsory complaints. Although the Commission as a matter of practice will notify the
respondents to a complaint, the case of Prior v Queensland University of Technology [2016]
FCCA 2853 ('QUT') and evidence before the PJCHR inquiry highlighted community
concern that respondents are not always promptly notified of the existence of a complaint.
24. The amendments will introduce a duty for the President to notify any respondents to a
complaint once he or she has decided to inquire into the complaint, including where
respondents are added at a later stage through amendment of a complaint, and any person
(other than the respondent) who is the subject of an adverse allegation in the complaint.
These duties are mandatory except where the President is satisfied that notification would
prejudice the safety of a person, or where it is not practicable to notify a person against
whom an adverse allegation is made. Where there is more than one respondent to the
complaint, such as in QUT, these provisions will ensure that multiple respondents to a
complaint are notified, to the extent possible, at the same time (except in the limited
circumstance in which to do so would prejudice the safety of a person). Instances of
prejudice to a person's safety may arise in, for example, cases of sexual harassment.
25. The amendments will also introduce new discretion for the President to notify persons
about a complaint who are likely to be able to provide information relevant to the complaint.
This will allow the President, where appropriate, to notify people against whom specific
allegations are not made but they may be intimately connected to the subject matter.
26. These amendments will ensure that respondents are notified in a timely manner so
that they have a fair opportunity to respond to allegations made against them.
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27. Threshold for lodging a complaint - Items 1, 2, 27, 28, 32, 33, 35, 38 and 40 will
raise the threshold for the lodgement of a valid unlawful discrimination complaint to the
Commission. These amendments will implement the majority of PJCHR recommendation 9.
28. The AHRC Act set a low threshold for the lodgement of a complaint. A bare
allegation that unlawful discrimination has occurred--even if it does not contain any
particulars of alleged conduct--is sufficient to meet the threshold for lodging a complaint.
The PJCHR accepted concerns expressed by submitters and witnesses to the inquiry that the
current low threshold encourages lodgement of complaints that are ultimately deemed to be
trivial, vexatious, misconceived or lacking in substance.
29. These amendments will raise the threshold for a complaint by requiring that the
complaint allege that certain conduct, alleged to be unlawful discrimination, has occurred.
The new provision will require that it must be 'reasonably arguable' that the alleged conduct
constitutes unlawful discrimination, and will require a complaint to set out details of the
alleged conduct as fully as is practicable. These requirements will ensure that complaints
contain more than bare allegations and sufficiently substantiate why alleged conduct
constitutes unlawful discrimination.
30. The higher threshold will enhance the Commission's ability to make an initial
assessment and dismiss complaints that are unmeritorious upon lodgement. This will assist
in avoiding potentially protracted complaints processes.
31. Processing unmeritorious complaints is an inefficient use of the time and resources of
the complainant, respondent, Commission, and in some cases, the courts. The amendments
will enable the Commission to operate more efficiently and reduce the regulatory burden of
the AHRC Act.
32. Termination of complaints -Items 29, 30, 31, 34, 37, 39, 41-46, 48, 52, 55 and 56
will provide greater ability for the Commission to terminate unmeritorious complaints.
These amendments will implement PJCHR recommendations 12 to 16.
33. During its inquiry, the PJCHR heard evidence about the operation of the President's
power to terminate complaints, including a perceived reluctance to use these powers in
circumstances where they may be warranted.
34. The Bill introduces three new grounds (one discretionary and three mandatory) on
which a complaint could be terminated by the President:
1. the President is satisfied, having regard to all the circumstances, that an inquiry, or
the continuation of an inquiry, into the complaint is not warranted (discretionary)
2. the President is satisfied that there is no reasonable prospect of the matter being
settled by conciliation (mandatory)
3. the President is satisfied the complaint is trivial, vexatious, misconceived, or lacking
in substance (mandatory): and
4. the President is satisfied 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 (mandatory).
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35. When a complaint is referred to the President, he or she will also be required to
consider whether to terminate the complaint, having regard to the grounds of termination,
before starting to inquire into the complaint.
36. The mandatory grounds of termination will target unmeritorious complaints. They
will oblige the President to terminate such complaints at an early stage, and provide a greater
disincentive to lodge frivolous complaints. Mandatory termination of such complaints will
reduce, in some cases significantly, the burden on potential respondents.
37. The Bill will also insert a note to clarify that the President is to consider the
exemptions to unlawful discrimination in deciding whether to terminate a complaint.
Accordingly, the President must, in considering whether a complaint constitutes unlawful
discrimination under section 18C, consider the exemptions in section 18D.
38. Leave of the Court - Item 53 will introduce a requirement that leave of the
Federal Court or Federal Circuit Court be granted to make applications alleging unlawful
discrimination which were the subject of complaints terminated by the President. The only
exceptions to this requirement will be where the President terminated the complaint because
he or she was satisfied that the subject matter of the complaint involves a significant issue of
public importance that should be considered by the Federal Court or Federal Circuit Court,
or where a complaint was terminated because the President was satisfied that there was no
reasonable prospect of the matter being settled by conciliation. This amendment will
implement PJCHR recommendation 18.
39. There is currently no substantive barrier to a person whose complaint has been
terminated on the basis that it is trivial, vexatious, misconceived or lacking in substance from
making an application to the court. Even if the court ultimately decides to dismiss the matter,
the respondent is nonetheless exposed to potentially significant costs in defending an
unmeritorious complaint. It also wastes the limited resources of the court.
40. In seeking leave of the court, an applicant will be required to explain why the matter
should be allowed to proceed to substantive hearing. This additional step will ensure that
allegations the subject of a complaint can only be litigated where there are reasonable
prospects of success, limiting unnecessary impositions on time and resources, and avoiding
prolonged uncertainty.
41. Costs - Items 47, 54 and 57 will introduce provisions relating to costs to discourage
unmeritorious complaints progressing to the Federal Court or the Federal Circuit Court.
These amendments will implement PJCHR recommendation 19.
42. Item 47 will require the Commission to provide a statement about the powers of the
Federal Court and the Federal Circuit Court to the complainant when it terminates a
complaint. Item 57 will ensure that the Court can consider a respondent's offer to settle an
unlawful discrimination matter in determining whether to award costs.
Amendments requested by the Commission
43. The following amendments in the Bill respond to recommendations requested by the
Commission to aid its smooth operation.
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44. Human rights and equal opportunity in employment inquiry functions - Items 6-9,
11-14, 16 and 17 will amend the Commission's functions with respect to human rights and
equal opportunity in employment functions. Complaints made under the Commission's
human rights or equal opportunity in employment functions cannot, unlike unlawful
discrimination complaints, proceed to the Federal Court or the Federal Circuit Court for
determination.
45. Items 6, 7, 11, 12, 16 and 17 will replace the mandatory duty for the Commission to
report to the Minister with discretion to report to the Minister. The Commission currently
has a mandatory duty to report regarding a human rights inquiry or an equal opportunity in
employment inquiry where the Commission finds the inquiry is made out and settlement is
inappropriate or unsuccessful. These amendments will maintain complainants and
respondents as the principal recipients of the report, with the Minister informed of major
issues at the Commission's discretion. These amendments are intended to reduce the
administrative burden of mandatory reporting on the Commission and the Government
which is imposed by reports that do not raise significant issues. At the same time, these
amendments will broaden the Commission's ability to formally report to the Minister, as the
Commission will no longer be limited to only report on complaints in which settlement was
inappropriate or unsuccessful.
46. Items 8, 9, 13 and 14 will introduce two new grounds by which the Commission may
close a human rights inquiry or an equal opportunity in employment inquiry. The
Commission will be empowered to close an inquiry where it is satisfied that the inquiry or
the continuation of an inquiry is not warranted or where there is no reasonable prospect of
conciliation. These amendments will allow the Commission to expeditiously dispose of
human rights and equal opportunity in employment complaints that are ill-conceived or
vexatious.
47. Discretion to produce statutory reports - Items 18-26 and Item 1 of Schedule 3 will
replace the duty of the Aboriginal and Torres Strait Islander Social Justice Commissioner
and the National Children's Commissioner to produce annual statutory reports with
discretion to provide reports to the Minister when the Commissioners see fit.
48. These amendments will broaden the Commissioners' ability to formally report to the
Minister. They will no longer be limited to a single annual report, and will have greater
flexibility to manage priority work, ensuring that reports are produced as needed and when
appropriate, rather than annually. The Commissioners may choose to continue submitting
reports on an annual basis; however, this will no longer be required.
49. Governance of the Commission - Items 3 and 5 will improve the governance
arrangements of the Commission.
50. Item 3 will replace the requirement that Commissioners act in a way that promotes the
collegiality of the Commission with a requirement that the Commissioners must cooperate to
achieve common objectives where practicable. Collegiality requirements are generally not
included in governance arrangements for statutory bodies. This amendment will bring the
AHRC's governance arrangements to be more in line with those of other Commonwealth
Commissions. As well, the amendment will remove the implied statutory pressure upon
Commissioners to arrive at a common view. The promotion of 'groupthink' is an
undesirable and inappropriate statutory objective.
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51. Item 5 will introduce an express power for the President to manage the administrative
affairs of the Commission. The President previously had to rely on implied powers to do so.
52. Voluntary and compulsory conciliation conferences - Items 49-51 will ensure that
both voluntary and compulsory conciliation conferences are regulated by the AHRC Act.
The Commission may hold both voluntary and compulsory conferences; however the AHRC
Act currently only regulates the holding of compulsory conferences. Compulsory
conferences are very rarely conducted by the Commission.
53. These amendments will ensure that procedures surrounding voluntary conferences are
also proscribed, providing certainty to complainants and respondents concerning the process
and requirements of conciliation conferences.
54. Confidentiality of conciliation - Item 49 will ensure that things said or done in the
context of conciliation are not later admissible in evidence in subsequent proceedings
relating to the complaint.
55. While it is generally understood that conciliation proceedings are confidential, the
AHRC Act did not fully reflect this understanding. This amendment will accord with
accepted alternative dispute resolution practice and will bring certainty to respondents and
complainants. It will ensure that parties are encouraged to actively take part in the
conciliation process without fear that what they have said or done may be used against them
in court.
FINANCIAL IMPACT
56. This Bill will have a nil or insignificant financial impact on Commonwealth
Government departments and agencies.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Human Rights Legislation Amendment Bill 2017
This Bill is 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
The Human Rights Legislation Amendment Bill 2017 responds to the recommendations of
the Parliamentary Joint Committee on Human Rights' (PJCHR) Report into Freedom of
Speech in Australia.
The Australian Human Rights Commission is an independent statutory body established by
the Australian Human Rights Commission Act 1986 (the AHRC Act). The Commission has
the ability to inquire into and attempt to conciliate complaints of unlawful discrimination.
Where a complaint cannot be successful resolved through the Commission's processes, the
complainant may make an application to the Federal Court or Federal Circuit Court alleging
unlawful discrimination.
The Bill amends the AHRC Act to address concerns articulated throughout the PJCHR
Inquiry about the ability of the complaints handling process to appropriately address
unmeritorious complaints, reflecting a view that the complaints handling process is currently
weighted in favour of complainants. The Bill introduces amendments to ensure that
unmeritorious complaints are disposed at each stage of the complaints process, including in
the Federal Court or Federal Circuit Court, and that each party to the complaint is treated
fairly throughout the process. The amendments include provisions that:
provide that, in dealing with complaints, the Commission is required to act fairly to
both parties, including through appropriate notification of the existence of a complaint
and timely resolution of complaints (Items 10, 15 and 36)
raise the threshold required for the Commission to accept a complaint (Items 1, 2, 27,
28, 32, 33, 35, 38 and 40)
provide additional powers to the Commission to terminate unmeritorious complaints
at the earliest opportunity (Items 29, 30, 31, 34, 37, 39, 41, 43-46, 48, 52, 55 and 56)
require the Commission to consider relevant exemptions to anti-discrimination laws
when considering whether to terminate a complaint (Item 42)
require an applicant to seek the leave of the Federal Circuit Court or the Federal Court
to make an application alleging unlawful discrimination when the complaint had been
terminated by the President, except if the complaint involves an issue of public
importance or where there was no reasonable prospect of the matter being settled by
conciliation (Item 53); and
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require the Commission to inform complainants of the costs jurisdiction of the Federal
Court and the Federal Circuit Court provide discretion for the courts to have regard to
settlement offers in determining costs (Items 47, 54 and 57).
The Bill also makes minor technical amendments to improve the Commission's reporting
obligations (Items 6-9, 11-14, 16 and 17), conciliation processes (Items 49-51) and
governance arrangements (Items 3 and 5).
The Bill makes a minor amendment to the Native Title Act 1993 to remove a mandatory duty
for the Aboriginal and Torres Strait Islander Social Justice Commissioner to report on the
operation of the Native Title Act from section 209 of the Native Title Act and instead provide
for discretionary reporting, with the relevant provision appearing in the AHRC Act.
Human rights implications
The amendments to the AHRC Act made by this Bill engage the following rights and
freedoms:
the right to an effective remedy
the right to a fair hearing; and
the presumption of innocence
The right to an effective remedy
Article 2(3) of the 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 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.
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
RDA, 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. Rather,
the amendments will limit the ability of complainants to attempt to obtain remedies through
the complaints system where their complaint is unmeritorious and does not constitute
unlawful discrimination.
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The amendments in this 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.
The leave provisions in Item 53 do not restrict the powers of the Courts to ultimately
determine the legal rights of parties to an unlawful discrimination application. Rather, these
amendments allow the Courts to consider, at the earliest opportunity, whether an application
has sufficient merit to proceed to a full hearing. Meritorious complaints will proceed to a full
hearing, and the Courts will maintain the ability to make orders where satisfied that there has
been unlawful discrimination. These orders may include an apology, damages, reinstatement
of employment, provision of goods or services, or a combination of these remedies.
The amendments in this Bill 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 right to a fair hearing
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.
The amendment in this 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.
The Federal Court and the Federal Circuit Court are competent, independent and impartial
courts established by law. The requirement that an applicant seek leave to the Courts to make
an application alleging unlawful discrimination does not remove access to the courts to
determine their matter; rather, this amendment will allow the Courts to consider, at the
earliest opportunity, whether an application has sufficient merit to proceed to a full hearing.
The requirement to seek leave does not limit the principle of equality of arms as the applicant
is not disadvantaged as against other parties to the proceeding. Rather, both the applicant and
the respondent have a reasonable opportunity of presenting their case to the court for it to
make a determination as to whether the applicant should be granted leave.
The amendments in this Bill relating to the Commission's administrative complaints handling
process do not engage the right to a fair hearing.
The Commission is an administrative body, and although it provides an avenue for persons
alleging unlawful discrimination to pursue an application in the Courts, it is unable to make a
determination of law that the conduct the subject of a complaint constitutes unlawful
discrimination. Accordingly, the Commission makes no determination of rights and
obligations in a suit at law, as required to enliven the right to a fair hearing in Article 14(1).
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Rather, the Courts make such determinations when an application is made alleging unlawful
discrimination under section 46PO of the AHRC Act.
The amendments in the Bill will ensure that all parties to a complaint are treated fairly,
including through requiring that all relevant parties are notified of the complaint against
them, ensuring that they are given the opportunity to refute any such claims. Additionally, the
amendments will ensure that the Commission's dispute resolution processes are fair and
accessible to both complainants and respondents, addressing community concerns that the
previous processes were weighted in favour of complainants.
The amendments in this Bill are compatible with the right to a fair hearing.
The presumption of innocence
Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have
the right to be presumed innocent until proven guilty according to law. The presumption of
innocence is also a fundamental principle of the common law.
Item 49 of the Bill creates a strict liability offence where a person has been given a notice to
attend a compulsory conciliation conference and the person refuses or fails to attend that
conference. This amendment does not create a new offence, but transfers the current strict
liability offence from section 46PL of the AHRC Act into the new section 46PJ. The general
defences under the Criminal Code, including a defence of mistake of fact, are available to a
defendant under this offence.
This amendment engages and limits the presumption of innocence. The prosecution is only
required to prove the physical element of the offence and is not required to prove a fault
element. This limitation is reasonable, necessary and proportionate to a legitimate aim.
The application of strict liability is necessary to ensure that, when the Commission exercises
its compulsory powers to conciliate a complaint, a person may not frustrate that compulsory
conciliation. As discussed above, these conciliation functions provide an effective remedy to
persons whose rights under the ICCPR have been violated. It is reasonable not to require the
prosecution to prove a fault element in circumstances where the individual had been given
reasonable notice to attend a conference and did not attend, particularly in circumstances
where Item 49 of the Bill requires the Commonwealth to pay a reasonable sum for the
individual's expenses of attendance. Strict liability is therefore only used where the
individual is clearly aware of his or her duties and obligations. This offence is proportionate
as it only applies to individuals who have received notice that they are required to attend a
conference, and do not, in fact, attend. It would not apply in circumstances where a person
had a reasonable and mistaken understanding of circumstances (for example, where a person
did not receive the notice of the requirement to attend).
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights,
particularly the right to an effective remedy. The limitation on the presumption of innocence
is reasonable, necessary and proportionate to a legitimate aim.
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NOTES ON CLAUSES
Preliminary
Clause 1 Short title
1. This clause provides for the short title of the Act to be the Human Rights Legislation
Amendment Act 2017.
Clause 2 Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table. Item 1 in the table provides that the whole of the Bill will commence on the day
after this Act receives Royal Assent.
Clause 3 Schedules
3. This clause provides that each Act specified in a Schedule to the Bill will be amended
or repealed as set out in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
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Schedule 2 - Amendment of the Australian Human Rights Commission Act 1986
Australian Human Rights Commission Act 1986
Items 1 and 2 Subsection 3(1)
4. Item 1 inserts a definition of 'alleged acts, omissions or practices' in section 3 of the
AHRC Act.
5. Item 2 repeals the definition 'alleged unlawful discrimination' from section 3 of the
AHRC Act.
6. As a consequence of introducing a higher threshold for lodging complaints with the
Australian Human Rights Commission (the Commission) in Part IIB of the AHRC Act,
complaints will have to set out the specific conduct that is alleged to be unlawful
discrimination. Therefore, references to 'alleged unlawful discrimination' will be
replaced with 'alleged acts, omissions or practices'.
7. This drafting change will make the AHRC Act clearer and will address repetitive
language. For example, the ground for termination of a complain paragraph 46PH(1)(a):
the President is satisfied that the alleged unlawful discrimination is not
unlawful discrimination
will be changed to:
the President is satisfied that the acts, omissions or practices are not unlawful
discrimination.
Item 3 Subsection 8(2)
8. This item repeals the requirement for the President and Commissioners to act in a way
that promotes the collegiate nature of the Commission.
9. This item inserts a requirement that the President and Commissioners must co-operate
to achieve common objectives, where practicable. This does not affect the operation of
section 44 which concerns resolution of disputes in meetings of the Commission.
10. This amendment brings the governance of the Commission into line with other
statutory bodies which ordinarily have no such requirement of collegiality. As well, the
amendment will remove the implied statutory pressure upon Commissioners to arrive at a
common view. The promotion of 'groupthink' is an undesirable and inappropriate statutory
objective.
Item 4 Subsection 8(6A)
11. This item provides that the powers of the Commission to report to the Minister in
relation to human rights inquiries or equal opportunity in employment inquiries under
sections 20A and 32A, must be exercised by the President. A reference in this Act to the
Commission or to a member of the Commission must be read as a reference to the President
in relation to the exercise of any of those powers.
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12. This amendment is consistent with subsection 8(5) which provides that the functions
of the Commission under paragraphs 11(1)(f) and 31(b), being the human rights inquiry and
equal opportunity in employment inquiry function respectively, are to be performed by the
President.
13. This amendment is consequential to Items 11 and 16, which introduce discretion,
rather than a duty, to provide human rights and equal opportunity in employment reports to
the Minister.
Item 5 Subsection 8A(5)
14. This item inserts a new subsection in section 8A providing that the President has the
express power to do all things necessary or convenient to be done for or in connection with
the performance of his or her functions.
15. Subsection 8A(3) provides that the President is responsible for managing the
administrative affairs of the Commission. Additionally, for the purposes of the Public
Governance, Performance and Accountability Act 2013, subsection 8A(4) provides that the
President is the accountable authority of the Commission.
16. The President currently relies on implied powers to manage the administrative affairs
of the Commission. This amendment will ensure the Commission has the necessary express
powers to do fulfil his or her functions.
Item 6 Paragraph 11(1)(f)
17. This item amends paragraph 11(1)(f) relating to the Commission's human rights
inquiry function to remove the mandatory duty to provide a report to the Minister under
subparagraph 11(1)(f)(ii). Item 11 introduces section 20A which replaces the duty to report
under subparagraph 11(1)(f)(ii) with discretion for the President to report to the Minister.
18. Currently the Commission is required to report to the Minister in relation to a human
rights inquiry in situations where the Commission finds that the act or practice is inconsistent
with or contrary to any human right, and attempting to settle the matter is not appropriate or
is unsuccessful. Once a report has been provided to the Minister, it must be tabled in
Parliament. This item will remove the mandatory duty to report to the Minister.
19. An act or practice for the purposes of this function is an act or practice done by or on
behalf of the Commonwealth, under an enactment or wholly or partly within a Territory.
Complainants under this function have no right to proceed to the Federal Court or the Federal
Circuit Court.
Item 7 Subsection 19(2BA)
20. This item inserts a new provision into section 19 which provides that the President
cannot delegate his or her powers under sections 20A and 32A. This amendment ensures that
only the President can exercise the discretion to provide human rights and equal opportunity
in employment reports to the Minister. This amendment is consequential to the Items 4, 11
and 16.
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21. This item is consistent with subsection 19(2B) which does not allow the President to
delegate his or her powers relating to the conduct of human rights inquiry or equal
opportunity employment complaints to another member of the Commission other than the
Human Rights Commissioner. As the powers under subsection 8(6A) relate only to the
decision to report to the Minister, rather than the inquiry function itself, it is appropriate that
this power only be exercisable by the President.
Item 8 Paragraph 20(2)(ba)
22. This item introduces a new ground under which the Commission may close a human
rights inquiry conducted in accordance with paragraph 11(1)(f).
23. In the case where an inquiry is being conducted on the basis of a complaint made to
the Commission, upon request of the Minister or upon the Commission's own-motion,
paragraph 20(2)(ba) provides that the Commission may decide not to inquire, or not to
continue to inquire, into the act or practice where the Commission is satisfied, having regard
to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint
is not warranted.
24. This amendment will allow the Commission to close human rights inquiries that are
no longer necessary given the circumstances of the case. This may include complaints which
are ill-conceived or vexatious, or in which the necessary information to support the complaint
or inquiry has not materialised. This will also harmonise the grounds for closing a human
rights inquiry with the grounds for closing an unlawful discrimination complaint.
Item 9 Subparagraphs 20(2)(c)(iib)
25. This item introduces a new ground under which the Commission may close a human
rights inquiry conducted in accordance with paragraph 11(1)(f).
26. In a case where an inquiry is being conducted on the basis of a complaint made to the
Commission, subparagraph 20(2)(c)(iib) provides that the Commission may decide not to
inquire, or not to continue to inquire, into the act or practice where the Commission is
satisfied that there is no reasonable prospect of conciliation.
27. This amendment will allow the Commission to expeditiously dispose of human rights
complaints, including those that are trivial, vexatious, misconceived, lacking in substance, or
where there is no reasonable prospect of the complaint being successfully resolved. This will
also harmonise the grounds for closing a human rights inquiry with the grounds for closing an
unlawful discrimination complaint.
Item 10 Subsections 20(9), (10), (11) and (12)
28. This item introduces principles by which the Commission's dispute resolution
functions in relation to human rights inquiries must be carried out. When the Commission
conducts a human rights inquiry, the Commission is expected to observe the principles of
natural justice. Although natural justice already applies to the Commission's handling of
complaints, these principles make the President's obligation to act fairly to all parties and to
act expeditiously clear on the face of the AHRC Act.
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29. Subsection 20(9) requires the Commission to act fairly in the performance of its
human rights inquiry functions. This will ensure the Commission acts fairly to the
complainant (or complainants) and the respondent (noting the definition of 'respondent' in
section 3 of the AHRC Act can include more than one person) in the course of inquiring into
a human rights complaint. This will include an obligation on the Commission not to favour
the complainant (or complainants) or the respondent, in light of the overall requirements of
the AHRC Act. The obligation to act fairly concerns the fairness of the procedures adopted
by the Commission, not the fairness of the outcome of a complaint. The requirement to act
fairly includes offering reasonable assistance to complainants and respondents. An example
of such assistance would be helping a person with disability to transcribe information. It is
not intended to extend to the provision of legal advice.
30. Subsection 20(10) requires the Commission to act expeditiously, and to use its best
endeavours to finalise a complaint within 12 months after lodgement.
31. Subsections 20(11) and (12) ensure that no legal rights will flow from a failure by the
President or the Commission to resolve complaints in accordance with the principles in
subsections (9) and (10), other than a legally enforceable obligation to observe the rules of
natural justice. In the case of failure to observe natural justice, however, observance of the
rules of natural justice may be the subject of enforcement by judicial proceedings.
32. This item replicates Items 15 in relation to the Commission's equal opportunity in
employment function.
33. This item will implement PJCHR recommendations 5, 6 and 7.
Item 11 Section 20A
34. This item inserts a new provision, section 20A, which provides a discretionary power
for the President of the Commission to report to the Minister regarding a human rights
inquiry. This item is consequential to Item 6 which removes the Commission's mandatory
duty to report to the Minister in relation to such an inquiry, in certain circumstances, under
subparagraph 11(1)(f)(ii).
35. This amendment will provide the Commission with discretion to report to the Minister
on human rights inquiries where the Commission is of the opinion that the act or practice is
inconsistent with or contrary to any human right and where the Commission considers it
appropriate to do so. This amendment will broaden the Commission's ability to report to the
Minister, as the Commission will now have the ability to report to the Minister regarding
successfully conciliated or settled complaints, rather than only inquiries in which settlement
has been inappropriate or unsuccessful.
Item 12 Paragraph 31(b)
36. This item amends paragraph 31(b) relating to the Commission's equal opportunity in
employment inquiry function to remove the mandatory duty to provide a report to the
Minister under subparagraph 31(b)(ii). Item 16 introduces section 32A which replaces the
duty to report under subparagraph 31(b)(ii) with discretion for the President to report to the
Minister.
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37. Currently the Commission is required to report to the Minister in relation to an equal
opportunity in employment inquiry in situations where the Commission finds that the act or
practice, including any systemic practice, may constitute discrimination in employment, and
attempting to settle the matter is not appropriate or is unsuccessful. Once a report has been
provided to the Minister, it must be tabled in Parliament. This item will remove the
mandatory duty to report to the Minister.
38. Discrimination for the purposes of this function is any distinction, exclusion or
preference that has the effect of nullifying or impairing equality of opportunity or treatment
in employment of occupation. Although a complaint of unlawful discrimination may also fall
within the equal opportunity in employment function, complaints under this function
typically relate to attributes which are within the AHRC Act but are not protected in
Commonwealth anti-discrimination law, such as discrimination in employment on the basis
of criminal record or trade union activity. As these attributes are not protected by
anti-discrimination law, complainants under this function cannot proceed to the Federal Court
or the Federal Circuit Court.
Item 13 Paragraph 32(3)(ba)
39. This item introduces a new ground under which the Commission may close an equal
opportunity in employment inquiry conducted in accordance with paragraph 31(1)(b).
40. In the case where an inquiry is being conducted on the basis of a complaint made to
the Commission, upon request of the Minister or upon the Commission's own-motion,
paragraph 32(3)(ba) provides that the Commission may decide not to inquire, or not to
continue to inquire, into the act or practice where the Commission is satisfied, having regard
to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint
is not warranted.
41. This amendment will allow the Commission to close equal opportunity in
employment inquiries that are no longer necessary given the circumstances of the case. This
may include complaints which are ill-conceived or vexatious, or in which the necessary
information to support the complaint or inquiry has not materialised. This will also harmonise
the grounds for closing an equal opportunity in employment inquiry with the grounds for
closing an unlawful discrimination complaint.
Item 14 Subparagraphs 32(3)(c)(iib)
42. This item introduces a new ground under which the Commission may close an equal
opportunity in employment inquiry conducted in accordance with paragraph 31(1)(b).
43. In a case where an inquiry is being conducted on the basis of a complaint made to the
Commission, subparagraph 32(3)(c) (iib) provides that the Commission may decide not to
inquire, or not to continue to inquire, into the act or practice where the Commission is of the
opinion that there is no reasonable prospect of conciliation.
44. This amendment will allow the Commission to expeditiously dispose of equal
opportunity in employment complaints, including those that are ill-conceived or vexatious.
This will also harmonise the grounds for closing a human rights inquiry with the grounds for
closing an unlawful discrimination complaint.
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Item 15 Subsections 32(4), (5), (6) and (7)
45. This item introduces principles by which the Commission's dispute resolution
functions in relation to equal opportunity in employment inquiries must be carried out. When
the Commission conducts an equal opportunity in employment inquiry, the Commission is
expected to observe the principles of natural justice. Although natural justice already applies
to the Commission's handling of complaints, these principles make the President's obligation
to act fairly to all parties and to act expeditiously clear on the face of the AHRC Act.
46. Subsection 32(4) requires the Commission to act fairly in the performance of its equal
opportunity in employment functions. This will ensure the Commission acts fairly to the
complainant (or complainants) and the respondent (noting the definition of 'respondent' in
section 3 of the AHRC Act can include more than one person) in the course of inquiring into
an equal opportunity in employment complaint. This will include an obligation on the
Commission not to favour the complainant (or complainants) or respondent, in light of the
overall requirements of the AHRC Act. The obligation to act fairly concerns the fairness of
the procedures adopted by the Commission, not the fairness of the outcome of a complaint.
The requirement to act fairly includes offering reasonable assistance to complainants and
respondents. An example of such assistance would be helping a person with disability to
transcribe information. It is not intended to extend to the provision of legal advice.
47. Subsection 32(5) requires the Commission to act expeditiously, and the Commission
must use its best endeavours to finalise a complaint within 12 months after lodgement.
48. Subsections 32(6) and (7) ensure that no legal rights will flow from a failure by the
President or the Commission to resolve complaints in accordance with the principles in
subsections 32(4) and (5), other than a legally enforceable obligation to observe the rules of
natural justice. In the case of failure to observe natural justice, however, observance of the
rules of natural justice may be the subject of enforcement by judicial proceedings.
49. This item replicates Items 10 in relation to the Commission's human rights function.
50. This item will implement PJCHR recommendations 5, 6 and 7.
Item 16 Section 32A
51. This item inserts a new provision, section 32A, which provides a discretionary power
for the President of the Commission to report to the Minister regarding an equal opportunity
in employment inquiry. This item is consequential to Item 12 which removes the
Commission's mandatory duty to report to the Minister in relation to such an inquiry, in
certain circumstances, under subparagraph 31(b)(ii).
52. This amendment will provide the Commission with discretion to report to the Minister
on equal opportunity in employment inquiries where the Commission is of the opinion that
the act or practice constitutes discrimination in employment and where the Commission
considers it appropriate to do so. This amendment will broaden the Commission's ability to
report to the Minister, as the Commission will now have the ability to report to the Minister
regarding successfully conciliated or settled complaints, rather than only inquiries in which
settlement has been inappropriate or unsuccessful.
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Item 17 Section 46
53. This item provides that discretionary reports provided to the Minister under
sections 20A and 32A are not required to be tabled. The tabling requirements for other
reports produced by the Commission, such as reports regarding the examination of
enactments under paragraph 11(1)(e), reports regarding laws that should be made by
Parliament under paragraph 11(1)(j) or reports as to action that needs to be taken by Australia
to comply with its international obligations under paragraph 11(1)(k), are not affected by this
amendment.
54. It is intended that the President will publish any reports provided to the Minister as he
or she sees fit. This amendment is not intended to reduce public scrutiny of Commission
reports. Rather, it is intended to reduce the administrative and resource cost of producing
reports for tabling for the Commission.
Item 18 Heading of section 46C
55. This item amends the current heading to section 46C to reflect that section 46C
includes exercises of powers as well as the functions of the Aboriginal and Torres Strait
Islander Social Justice Commissioner (the Social Justice Commissioner). This amendment is
consequential to the amendments by Item 20 to include a discretionary power to report to the
Minister.
Item 19 Paragraph 46C(1)(a)
56. This item repeals paragraph 46C(1)(a) which requires the Social Justice
Commissioner to submit an annual statutory report to the Minister regarding the enjoyment
and exercise of human rights by Aboriginal persons and Torres Strait Islanders. Item 20
inserts discretion for the Social Justice Commissioner to produce such a report when he or
she sees fit.
Item 20 Subsections 46C(2A), (2B) and (2C)
57. This item inserts discretion for the Social Justice Commissioner to submit reports to
the Minister relating to the enjoyment and exercise of human rights by Aboriginal persons
and Torres Strait Islanders and the operation of the Native Title Act 1993.
58. Subsection (2A) introduces discretion for the Social Justice Commissioner to report to
the Minister regarding the enjoyment and exercise of human rights by Aboriginal persons and
Torres Strait Islanders. This replaces the mandatory duty to report under paragraph 46C(1)(a),
which is repealed by Item 19.
59. Subsection (2B) introduces discretion for the Social Justice Commissioner to report to
the Minister regarding the operation of the Native Title Act and the effect of that Act on the
enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders.
This replaces the mandatory duty to report under subsection 209(1) of the Native Title Act,
which is repealed by Item 1 of Schedule 3.
60. Subsection (2C) ensures that reports under subsection (2A) and (2B) may include
recommendations as to the action that should be taken. This replicates the previous
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requirement to include recommendations under the repealed paragraph 46C(1)(a). There is no
requirement that these reports contain recommendations.
Item 21 Subsections 46C(3) and (4)
61. This item is consequential to the introduction of discretion to report to the Minister by
Item 20.
62. This amendment will ensure that the Social Justice Commissioner, in exercising his or
her powers to submit a discretionary report, has the same consultative powers and human
rights jurisdiction as the Social Justice Commissioner has in relation to mandatory reports
under paragraph 46C(1)(a).
Item 22 Section 46M
63. This item is consequential to the repeal of paragraph 46C(1)(a) by Item 19 and the
introduction of discretionary reporting grounds by Item 20.
64. This item will maintain current tabling arrangements. The amendment will allow
reports produced by the Social Justice Commissioner under section 46C to be tabled in
Parliament.
65. This item will also require Native Title reports to be tabled in Parliament. There is no
express obligation that Native Title reports be tabled in Parliament under the Native Title Act.
However, since 2013 the Social Justice Report and the Native Title Report have been
produced as a single report and accordingly tabled. This amendment will ensure the practical
tabling arrangements in place since 2013 are maintained.
Item 23 Heading of section 46MB
66. This item amends the current heading to section 46MB to reflect that section 46MB
includes exercises of powers as well as the functions of the National Children's
Commissioner (the Children's Commissioner). This amendment is consequential to the
amendments by Item 25 to include a discretionary power to report to the Minister.
Item 24 Paragraph 46MB(1)(a)
67. This item repeals paragraph 46MB(1)(a) which requires the Children's Commissioner
to submit a mandatory annual statutory report to the Minister relating to the enjoyment and
exercise of human rights by children in Australia. Item 25 inserts discretion for the Children's
Commissioner to produce such a report when he or she sees fit.
Item 25 Subsections 46MB(3) and (3A)
68. This item inserts discretion for the Children's Commissioner to submit reports to the
Minister relating to the enjoyment and exercise of human rights by children in Australia. This
replaces the mandatory duty to report under paragraph 46MB(1)(a) which is repealed by Item
24.
69. New subsections 46MB(3) and (3A) retain the requirements for such a report as
contained in subsection 46MB(3). Subsection 46MB(3A) ensures that discretionary reports
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may include recommendations as to the action that should be taken. There is no requirement
that these reports contain recommendations.
70. The requirement to table these reports under section 46MN will be maintained.
Item 26 Subsections 46MB(4), (5) and (6)
71. This item is consequential to the introduction of discretion to report to the Minister by
Item 25.
72. This amendment will ensure that Children's Commissioner, in exercising his or her
powers to submit a discretionary report has the same consultative powers, human rights
jurisdiction and discretion to give particular attention to children who are at risk or vulnerable
as the Children's Commissioner has in relation to mandatory reports under
paragraph 46MB(1)(a).
Item 27 Subsections 46P(1), (1A) and (1B)
73. Section 46P of the AHRC Act sets out the requirements for lodging a complaint with
the Commission. The current section sets a low threshold for lodging a complaint. A bare
allegation that unlawful discrimination has occurred--even if it does not contain any
particulars of alleged conduct--is sufficient to meet the threshold for lodging a complaint.
74. This item will increase the threshold for lodging complaints with the Commission by
replacing the existing requirement under subsection 46P(1) of the AHRC Act.
75. This item sets out the requirements of a complaint. It must be in writing, allege that
certain conduct (one or more acts, omissions or practices) has occurred and allege that the
conduct is unlawful discrimination. A person making a complaint is required to set out the
details of the alleged acts, omissions or practices as fully as is practicable.
76. This item also provides that it must be 'reasonably arguable' that the alleged conduct
is unlawful discrimination. These requirements will ensure that complaints contain more than
bare allegations and sufficiently substantiate why alleged conduct is unlawful discrimination.
To be a valid complaint under section 46P, a complaint must allege conduct that, if true,
would constitute unlawful discrimination.
77. Increasing the threshold for complaints will implement recommendation 9 of the
PJCHR report. The PJCHR accepted concerns expressed by submitters and witnesses to the
inquiry that the current low threshold encourages lodgement of complaints that are ultimately
deemed to be trivial or vexatious.
78. The higher threshold will give the Commission greater discretion to make an initial
assessment and dismiss complaints that are unmeritorious at any earlier time. This will help
avoid protracted complaints processes.
79. Dealing with unmeritorious complaints is an inefficient use of the time and resources
of the complainant and respondent, the Commission, and in some cases, the courts. The
anticipated reduction in the volume of complaints the Commission is required to process will
allow the Commission to operate more efficiently and reduce the regulatory burden of the
AHRC Act.
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Items 28, 32, 33, 35, 38 and 40
80. Consistent with items 1 and 2, these items replace references to 'alleged unlawful
discrimination' (or 'unlawful discrimination') with 'alleged acts, omissions or practices' (or
'acts, omissions or practices'). These drafting changes will make the AHRC Act clearer and
address repetitive language.
Item 29 Subsection 46PC(1)
81. This item is consequential to Item 31 which includes an additional mandatory ground
of termination of complaints in subsection 46PF(1).
82. This item will ensure that a class member may, by notice in writing to the
Commission, withdraw from a representative complaint at any time before the President
terminates the complaint under section 46PF(1).
Item 30 Subsection 46PE(3)
83. This item is consequential to Item 47, which includes a new subsection 46PH(2A).
84. This item will ensure that if the President terminates a complaint against a member of
the Commission (under subsection 46PE(2)), the President must notify the complainant in
writing of that decision and the reasons for that decision (under subsection 46PH(2)). The
notification must include a statement explaining that the Federal Court or the Federal Circuit
Court can award costs in proceedings under section 46PO.
Item 31 Subsection 46PF(1)
85. When a complaint is made to the Commission (under section 46P of the AHRC Act),
the Commission must refer the complaint to the President (section 46PD). Under
Subsection 46PF(1) of the AHRC Act, the President must inquire into the complaint and
attempt to conciliate the complaint. When the President inquires into or conciliates a
complaint, the President is expected to observe the principles of natural justice.
86. This item substitutes a new subsection (1) which will clarify that the President must
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.
87. The President must terminate the complaint without inquiry if the President is of the
opinion that, having regard to any of the matters in section 46PH, the complaint should be
terminated.
88. This obligation will ensure that unmeritorious complaints are terminated at an early
stage and do not impose a burden on potential respondents or the Commission.
89. This item will introduce new subsection (1A), which clarifies that the President may
inform himself or herself of such facts and circumstances as are necessary to form the
opinion to terminate complaints in paragraph 46PF(1)(b). This is necessary in order to ensure
that a decision by the President to terminate a complaint without inquiry, is nevertheless
based upon relevant facts and circumstances, notwithstanding that no inquiry has been
commenced.
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90. This item will also introduce subsection (1B), which requires the President to comply
with notification requirements under subsections 46PH(2), (2A) and (3).
Item 34 Subsection 46PF(4)
91. This item is consequential to Item 31, which includes an additional mandatory ground
of termination of complaints in subsection 46PF(1).
92. This item ensures that a complaint cannot be amended after it is terminated by the
President under paragraph 46PF(1)(b).
Item 36 Subsections 46PF(6)-(10)
93. This item will introduce principles applicable to the President's handling of
complaints of unlawful discrimination. Although natural justice already applies to the
President's handling of complaints at all stages, these principles make the President's
obligation to act fairly to all parties and to act expeditiously clear on the face of the
AHRC Act.
94. New subsection 46PF(6) will oblige the President to act fairly to the complainant (or
complainants) and the respondent (noting the definition of 'respondent' in section 3 of the
AHRC Act can include more than one person) in the course of inquiring into and attempting
to conciliate a complaint. This will include an obligation on the President not to favour the
complainant (or complainants) or respondent, in light of the overall requirements of the
AHRC Act. The obligation to act fairly concerns the fairness of the procedures adopted by
the President, not the fairness of the outcome of a complaint. The requirement to act fairly
includes offering reasonable assistance to complainants and respondents. An example of such
assistance would be helping a person with disability to transcribe information. It is not
intended to extend to the provision of legal advice.
95. New subsections 46PF(7) and 46PF(8) will require the President to notify the
respondent to a complaint, including where a new respondent is added at a later stage through
an amendment to a complaint. There may be more than one respondent to a complaint
(section 3 of the AHRC Act defines 'respondent', in relation to a complaint, as the person or
persons against whom the complaint is made).
96. New subsections 46PF(7) and 46PF(8) are directed at complaints involving more than
one respondent. The obligation on the President created by these subsections is intended to
ensure timely notification of respondents, to provide them with a fair opportunity to respond
to allegations made against them. For example, a complaint may be made to the Commission
against an organisation based on the alleged conduct of several of the organisation's
employees, as well as against the employees individually. New subsections 46PF(7) and
46PF(8) will ensure that where there are multiple respondents to a complaint, each
respondent is notified of the complaint in a timely manner, and to the extent possible, at the
same time.
97. New subsection 46PF(9) requires the President to notify the complaint to any person
(other than the respondent) who is the subject of a specific allegation in the complaint. A
respondent to a complaint of unlawful discrimination may be subject to legal action in the
courts if the complaint is terminated. However, a person who is the subject of an adverse
allegation, but is not a respondent to a complaint, is not subject to legal action. Nevertheless,
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such a person may suffer reputational harm if allegations are made against them. They are
entitled to know of the fact that the allegations have been made and, if they choose to do so,
to challenge them. To enable them to do so, it is appropriate for the President to notify these
persons as their alleged conduct may be the source of the complaint.
98. New subsection 46PF(9) also provides the President with an additional power to
notify persons who are likely to be able to provide information relevant to the complaint of
the existence of a complaint. These persons may not necessarily be respondents to a
complaint, but may have knowledge of conduct that is alleged in the complaint, or other
relevant information.
99. New subsection 46PF(10) requires the President to act expeditiously when dealing
with complaints, and to use best endeavours to finish dealing with complaints within
12 months after the complaint is referred to the President. In acting expeditiously, the
President is required to have regard to the nature of the complaint, and the needs of the
complainant (or complainants) and the respondent. Most complaints are finalised by the
Commission within a short period. Nevertheless, this subsection provides a clear legislative
imperative for the President to continue to ensure that complaints are finalised quickly, and
avoid protracted processes on complainants and respondents.
100. The requirements inserted by this item are similar to those in Items 10 and 15 in
relation to the Commission's human rights and equal opportunity in employment functions.
Subsections 46PF(11) and (12) ensure that no legal rights will flow from a failure by the
President to resolve complaints in accordance with the principles in subsections (6) and (10),
other than a legally enforceable obligation to observe the rules of natural justice. In the case
of failure to observe natural justice, however, observance of the rules of natural justice may
be the subject of enforcement by judicial proceedings.
101. This item will implement PJCHR recommendations 5, 6 and 7.
Item 37 Heading before subsection 46PH(1)
102. This item inserts a heading to indicate the grounds for discretionary termination of a
complaint by the President.
Item 39 Paragraph 46PH(1)(b)
103. Paragraph 46PH(1)(b) currently provides that the President may terminate a complaint
if the complaint was lodged more than 12 months after the alleged unlawful discrimination
took place.
104. This item reduces the time limit to 6 months. This reduction will provide a strong
incentive for complainants to lodge complaints in a timely manner following the occurrence
of conduct alleged to be unlawful discrimination.
105. The reduction will also give the President additional flexibility to terminate
complaints that are lodged a significant time after alleged conduct took place for a potentially
vexatious or other unmeritorious purpose. This will also reduce the burden on potential
respondents.
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Item 41 Paragraph 46PH(1)(c)
106. Under existing paragraph 46PH(1)(c), the President has discretion to terminate a
complaint if the President is satisfied that the complaint was trivial, vexatious, misconceived
or lacking in substance. However, once the President has arrived at that view, there is no
reason why the complaint should not be terminated at that stage. Therefore, it is not
appropriate that the President should still have discretion whether or not to terminate the
complaint: once the conclusion termination on this ground the complaint should be
terminated forthwith. This ground will therefore be a mandatory ground of termination in
new subsection 46PH(1B).
107. This item repeals the existing ground under paragraph 46PH(1)(c), and substitutes a
new paragraph 46PH(1)(c) providing a new discretionary ground for the termination of a
complaint where the President is satisfied, having regard to all the circumstances, that an
inquiry, or the continuation of an inquiry, into the complaint is not warranted.
108. The new discretionary ground of termination will provide the President with
additionally flexibility to terminate unmeritorious complaints or complaints which should
otherwise not proceed. This will reduce the burden on potential respondents.
109. This item will implement PJCHR recommendation 12.
Item 41A Paragraph 46PH(1)(h)
110. This item is consequential to Item 41B which repeals the discretionary ground of
termination under paragraph 46PH(1)(i) of the AHRC Act. This amendment substitutes
'Court;' for 'Court.' in paragraph 46PH(1)(h).
Item 41B Paragraph 46PH(1)(i)
111. This item 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 AHRC Act.
Item 42 Note
112. This item inserts a note after the grounds of termination in section 46PH. The note
makes clear that consideration of whether an act, omission or practice is unlawful
discrimination will involve consideration of whether an exemption applies. For example, if an
exemption in section 18D of the RDA applies to conduct that would otherwise contravene
section 18C, that conduct would not be unlawful discrimination.
Item 43 Subsections 46PH(1A) - (1D)
113. This item:
inserts new subsections 46PH(1A) and 46PH(1D), which clarify that the
President's power to terminate complaints under the discretionary and
mandatory grounds may be exercised at any time, even if an inquiry into the
complaint has begun
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inserts new subsection 46PH(1B), which provides a new mandatory ground
for the termination of a complaint where the President is satisfied the
complaint is trivial, vexatious, misconceived, or lacking in substance; or there
is no reasonable prospect that the complaint will be settled by conciliation, and
inserts new subsection 46PH(1C), which provides a new mandatory ground
for the termination of a complaint where the President is satisfied 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.
114. New subsections 46PH(1A) and 46PH(1D) clarify that the grounds of termination
may be exercised by the President at any time, including at an early stage.
115. Under the mandatory grounds of termination, the President must terminate a
complaint. The mandatory grounds are targeted at unmeritorious complaints. They oblige the
President to terminate unmeritorious complaints at an early stage, and provide a stronger
disincentive against lodgement of such complaints. The requirement that the President
terminate such complaints will reduce, in some cases significantly, the burden on potential
respondents.
116. New subsection 46PH(1B) reproduces the existing grounds in paragraph 46PH(1)(c)
and paragraph 46PH(1)(i) as mandatory grounds of termination.
117. New subsection 46PH(1C) introduces a new mandatory ground for the termination of
a complaint where the President is satisfied 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. This imports into the complaint proceeding a test
similar to that applied by the Courts in dismissing an action summarily ('no reasonable
prospect of success').
118. New subsection 46PH(1C) concerns the substance of a complaint. In considering
whether there would be no reasonable prospect of success in the Federal Court or Federal
Circuit Court, the President would assume that the procedural steps prior to the court hearing
the case, including those under section 46PO of the AHRC Act, had occurred. These steps
include:
the complaint has been terminated
notice of the termination has been given, and
the court concerned has granted leave to make the application.
119. The fact that the grounds of termination in new subsections 46PH(1B) and 46PH(1C)
are mandatory does not affect the ability for a person to make an application to the Federal
Court or Federal Circuit Court under section 46PO of the AHRC Act. However, this is
subject to the new requirement that the court grants leave to make the application (see
Item 53). This reflects the fact that the Commission's complaint-handling function is not a
judicial function, and that recourse to the courts should be exceptional. It is for the courts
therefore to determine whether grounds exist or not to grant leave. An example of a ground to
27
grant leave might be if the President, in conducting the complaint process, had made an error
of law.
120. Respondents to a complaint may write to the President at any time to request that the
President exercise his or her power to terminate a complaint under any of the grounds in
section 46PH.
121. This item also inserts a heading to indicate the grounds for mandatory termination of a
complaint by the President.
122. This item will implement PJCHR recommendations 13, 15 and 16.
Item 44 Heading before subsection 46PH(2)
123. This item inserts a heading to indicate that subsections 46PH(2) and 46PH(3) relate to
notification of termination of a complaint.
Item 45 Subsection 46PH(2)
124. This item omits 'decides to terminate a complaint' and substitutes 'terminates a
complaint' from subsection 46PH(2).
125. A more generalised reference is necessary because this Bill introduces new mandatory
grounds of termination of complaints (in addition to the existing discretionary grounds).
Under the new mandatory grounds of termination, the President does not decide to terminate
a complaint--the President is obligated to terminate.
Item 46 Subsection 46PH(2)
126. This item is consequential to Item 31 which includes an additional mandatory ground
of termination of complaints in subsection 46PF(1).
127. This item omits references to 'that decision' (wherever occurring) and substitutes 'the
termination'. This will ensure that the requirement the President notifies a complainant of a
decision to terminate a complaint also applies in relation to subsection 46PF(1).
Item 47 Subsection 46PH(2A)
128. This item inserts a new provision which requires the President to include a statement
noting the costs jurisdiction of the Federal Court and the Federal Circuit Court in a notice of
termination under subsection 46PH(2).
129. Such a statement is not intended to be an exhaustive overview of the Federal Court
and the Federal Circuit Court's costs jurisdiction. The purpose of this amendment is to ensure
that complainants are explicitly made aware that if they pursue their complaint in the Federal
Court or the Federal Circuit Court that they may be subject to an adverse costs order.
130. This item will implement recommendation 19 of the PJCHR Report.
28
Item 48 Heading before subsection 46PH(4)
131. This item inserts a heading to indicate that subsection 46PH(4) relates to revocation of
termination of a complaint.
Item 49 Sections 46PJ, 46PK and 46PKA
132. This item replaces sections 46PJ and 46PK to broaden the application of legislative
proscriptions regarding compulsory conciliation conferences to include voluntary conciliation
conferences.
133. The Commission may hold both voluntary and compulsory conferences. However, the
AHRC Act only regulates the holding of compulsory conferences, despite such conferences
being very rarely conducted by the Commission. This item will ensure that procedures
surrounding voluntary conferences are also proscribed, providing certainty to complainants
and respondents during the conciliation of a complaint.
134. Subsection 46PJ(1) provides that the President may decide to hold a conference for
the purposes of conciliating an unlawful discrimination complaint.
135. Subsection 46PJ(2) allows the President to invite any or all of the complainants or
respondents to attend the conference, and invite any other person to attend the conference if
the President reasonably believes the person is capable of giving information that is relevant
to the complaint, or if the President considers that the person's presence is likely to be
conducive to the conciliation of a complaint.
136. This subsection may be used, for example, where the respondent to a complaint is an
employer who is vicariously liable for the conduct of their employees. Where the employee
who did the relevant act is not the respondent to the complaint, but may be able to give such
information or assist in conciliating the complaint, the President may invite him or her to
attend under paragraph 46J(2)(b).
137. Subsections 46PJ(3)-(6) set out the provisions for a compulsory conference,
providing a distinction between the Commission inviting a person to attend a conference and
the Commission compelling a person to attend a conference. Subsection (3) provides that the
Commission may require people to attend a conference by written notice. Notices requiring
attendance at a conference must specify the time and the place of the conference, not being a
time that is less than 14 days after the notice has been given, and the Commission must pay
the reasonable costs for a person's attendance where this has been required.
138. Failure to comply with a notice from the Commission requiring attendance at a
conference under subsection (3) is an offence under subsection (5). This replicates
section 46PL, which is repealed by Item 50.
139. Subsection (6) specifies that an offence under subsection (5) is an offence of strict
liability. The general defences under the Criminal Code apply to an offence under subsection
(5). For example, if a person who is given notice to attend a compulsory conference in person
cannot attend the conference because an earthquake occurs in Sydney at the time of the
conference, that person could rely upon the defence of sudden or extraordinary emergency
under Division 10 of the Criminal Code.
29
140. Subsection (7) provides that a person required to attend a compulsory conference is
entitled to be paid a reasonable sum for their expenses of attendance. This may include, for
example, reimbursement of reasonable transport costs.
141. Section 46PK provides that the Commission is able to conduct conciliation
conferences in such a manner as the Commission considers appropriate. This will ensure that,
aside from the minimal formal requirements, the person presiding retains the maximum
degree of flexibility possible in relation to the conduct of a conference.
142. Subsections (2) and (3) provide that the conference must be held in private and the
person presiding over the conference must take all reasonable steps to ensure that neither
complainants nor respondents are disadvantaged.
143. Subsection (4) outlines whether and how an individual or body is able to be
represented at a conference. For example, if a business were a respondent to a complaint, it
would need to be represented by an officer or employee of the business at the conference. If
the business wished to be represented by another person or body, the business would need to
seek the consent of the person presiding at the conference.
144. Subsection (5) provides that despite the requirements of subsection (4), if an
individual is unable to attend the conference because of their disability, they are able to
nominate a person to attend on their behalf. Subsection (6) provides that if an individual with
a disability is unable to fully participate in the conference, they are able to nominate a person
to assist them at the conference.
145. Subsection (7) makes it clear that the term 'disability' in this section has the same
meaning as in the DDA.
146. Section 46PKA provides that anything said or done in the course of conciliation is not
admissible in evidence in any proceedings relating to the alleged acts, omissions or practices.
For example, evidence of anything said or done in the course of conciliation of a disability
discrimination complaint would not be admissible in evidence in later proceedings, such as
proceedings under section 46PO in relation to the DDA or any other proceedings arising out
of the same subject matter, such as a tort or contract claim.
147. Subsection 46PKA(1) carves out an exception for an application made under section
46PSA under Item 30A. This means that, where a respondent in conciliation makes an offer
to settle the complaint to the complainant, and that offer is rejected, the respondent is not
barred by section 46PKA from bringing evidence of that offer in determining whether the
court should award costs against the complainant under section 46PSA.
Item 50 Section 46PL
148. This item will repeal section 46PL. This repeal is a consequential amendment due to
the creation of a strict liability offence for failure to comply with a notice from the
Commission requiring attendance at a conference by Item 49.
Item 51 Subsection 46PM(1)
149. This item will remove redundant references to sections 46PJ and 46PK in subsection
46PM(1).
30
150. Subsection 46PM(1) creates a penalty when a person refuses or fails to give
information or to produce a document when so required under section 46PI or 46PK. Sections
46PJ and 46PK as amended no longer require a person to give information or produce a
document.
Item 52 Paragraph 46PO(1)(a)
151. Section 46PO of the AHRC Act provides that if a complaint has been terminated
under section 46PH, a person may make an application to the Federal Court or the Federal
Circuit Court.
152. This item will ensure that a person may make an application to the Federal Court or
Federal Circuit Court in relation to a complaint that is terminated under the new ground of
termination in paragraph 46PF(1)(b).
Item 53 Subsection 46PO(3A)
153. This item inserts new subsection 46PO(3A), which provides that an application to the
Federal Court or Federal Circuit Court must not be made unless the court grants leave to
make the application, or unless a complaint was terminated under paragraph 46PH(1)(h) or
paragraph 46PH(1B)(b) of the AHRC Act.
154. A complaint is terminated under paragraph 46PH(1)(h) if the President is satisfied that
the subject matter of the complaint involves an issue of public importance that should be
considered by the Federal Court or the Federal Circuit Court. These matters should not
require leave to make an application to the court.
57. A complaint is terminated under paragraph 46PH(1B)(b) if the President is satisfied
that there is no reasonable prospect the matter will be settled by conciliation. This reflects
that termination on the basis of no reasonable prospect of conciliation does not reflect the
merit of the complaint.
155. This item will implement PJCHR recommendation 18.
Item 54 Notes at the end of subsection 46PO(4)
156. This item inserts two notes at the end of subsection 46PO(4) to clarify the costs
jurisdiction of the Federal Court and the Federal Court. The Federal Court and Federal
Circuit Court have general jurisdiction to award costs in the discretion of the Court, in
accordance with section 43 of the Federal Court Act 1976 and section 79 of the Federal
Circuit Court Act 1999.
157. Although the Courts already have jurisdiction to make costs orders against applicants
in cases where there were no reasonable prospects of success, this amendment makes it clear
on the face of the AHRC Act that an applicant may be subject to a costs order by pursuing an
application in the Federal Court or the Federal Circuit Court under section 46PO.
158. This item will implement PJCHR recommendation 19.
31
Item 55 Subsection 46PP(3)
159. This item is consequential to Item 31 which includes an additional mandatory ground
of termination of complaints in subsection 46PF(1).
160. Section 46PP of the AHRC Act provides that the Federal Court or the Federal Circuit
Court may grant an interim injunction to maintain the status quo or the rights of any
complainant, respondent or affected person at any time after a complaint is lodged with the
Commission.
161. This item will ensure that an injunction under section 46PP cannot be granted if the
complaint has been terminated under paragraph 46PF(1).
Item 56 Subsection 46PS(1)
162. This item is consequential to Item 31 which includes an additional mandatory ground
of termination of complaints in subsection 46PF(1).
163. Section 46PS of the AHRC Act provides that the President may provide the Federal
Court or Federal Circuit Court with a written report on a complaint that has been terminated
under section 46PH.
164. This item will ensure that the President may also provide the court with a written
report on a complaint that has been terminated under subsection 46PF(1).
Item 57 Section 46PSA
165. This item will insert a provision which clarifies that the court may, in exercising its
discretion to award costs in an unlawful discrimination proceeding, consider previous
rejected offers to settle the matter.
166. For example, if in the course of conciliation, the respondent offered a monetary
settlement and the court ultimately upheld the application, the court could consider that offer
in determining whether to award costs in the proceedings against the applicant.
Alternatively, if the court dismissed the case, the court could consider the respondent's
previous offers to settle. The court may take into account settlement offers made by both
applicants and respondents to the matter.
167. This item is intended to discourage clearly unmeritorious complaints from progressing
to court. It is intended to deter recourse to the court where earlier settlement offers have been
made that may reasonably be regarded as equivalent to the remedy that the court has
ultimately offered.
Item 58 Application of amendments
168. Clause (1) provides for the application of amendments made by Items 6, 11, 12 and
16. These replace the mandatory duty to report to the Minister with discretion to report to the
Minister regarding human rights inquiries and equal opportunity in employment inquiries.
Where an inquiry is in response to a complaint, the amendments apply to complaints made
after the commencement of the Act (the day after Royal Assent). Where an inquiry is
32
own-motion or has been requested by the Minister, the amendments apply to inquiries which
began after the commencement of the Act.
169. Clause (2) provides for the application of amendments made by Items 1, 27-38 and
40-51. These amendments relate to the threshold of a complaint, the President's obligation to
consider termination prior to inquiry and the President's duty to act fairly and expeditiously.
These amendments also relate to the new grounds of termination, including the mandatory
duty to termination, and the proscriptions regarding voluntary and compulsory conciliation
conferences. These amendments apply in relation to a complaint lodged after the
commencement of the Act (the day after Royal Assent).
170. Clause (3) provides for the application of amendments made by Items 9 and 14
relating to new grounds of termination for inquiries arising out of human rights and equal
opportunity in employment complaints. These amendments will apply to complaints made
after the commencement of the Act (the day after Royal Assent).
171. Clause (4) provides for the application of subsection 20(9) as amended by the Act.
This amendment introduces an obligation for the Commission to act fairly in the performance
of a human rights inquiry. Where an inquiry is in response to a complaint, the amendments
apply to complaints made after the commencement of the Act. Where an inquiry is
own-motion or has been requested by the Minister, the amendments apply to inquiries which
began after the commencement of the Act (the day after Royal Assent).
172. Clause (5) provides for the application of subsection 32(4) as amended by the Act.
This amendment introduces an obligation for the Commission to act fairly in the performance
of an equal opportunity in employment inquiry. Where an inquiry is in response to a
complaint, the amendments apply to complaints made after the commencement of the Act.
Where an inquiry is own-motion or has been requested by the Minister, the amendments
apply to inquiries which began after the commencement of the Act (the day after Royal
Assent).
173. Clause (6) 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 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).
174. Clause (7) 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).
175. Clause (8) provides for the application of amendments made by Item 39. Item 39
allows the Commission to terminate a complaint if it was lodged more than six months after
the alleged acts, omissions or practices, took place. This amendment applies to a complaint
lodged after the commencement of the Act if the alleged acts, omissions or practices took
place after the commencement of the Act (the day after Royal Assent).
176. Clause (9) provides for the application of amendments made by Items 52, 53 and 57.
These amendments introduce a requirement to seek leave of the Federal Court or Federal
33
Circuit Court and allow the court, or a judge of the court, to consider settlement offers in
deciding whether to award costs. These amendments apply in relation to an application made
to the Federal Court or the Federal Circuit Court under section 46PO of the AHRC Act if the
relevant complaint was lodged after the commencement of the Act (the day after Royal
Assent).
Item 59 Transitional - tabling of reports
177. This item ensures that if the Minister receives the annual report by the Social Justice
Commissioner under paragraph 46C(1)(a) prior to the commencement of this Act, that report
may still be tabled in Parliament as if section 46M had not been amended by Item 22 to
remove reference to paragraph 46C(1)(a).
34
Schedule 3 - Amendment of the Native Title Act 1993
Native Title Act 1993
Item 1 Section 209
178. This item repeals subsection 209(1) which requires the Social Justice Commissioner
to submit a mandatory annual statutory report to the Minister relating to the operation of the
Native Title Act 1993 and the effect of the Native Title Act on the exercise and enjoyment of
human rights of Aboriginal peoples and Torres Strait Islanders. Item 11 of Schedule 2 inserts
discretion for the Social Justice Commissioner to produce such a report when he or she sees
fit.
179. This item retains the ability of the Minister to direct the Social Justice Commissioner
to report to the Minister regarding the operation of the Native Title Act and the effect of the
Native Title Act on the exercise and enjoyment of human rights of Aboriginal peoples and
Torres Strait Islanders.
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