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Australian Government Solicitor

 

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Legal Briefing  

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Legal Briefing

Number 57

(December 1, 2000)

Determination of Claims under
Commonwealth Anti-Discrimination Laws

Legislative amendments1 which took effect on 13 April 2000 have changed the powers and processes for dealing with complaints alleging breaches of the Racial Discrimination Act 1975 (RDA), Sex Discrimination Act 1984 (SDA) and Disability Discrimination Act 1992 (DDA).

Prior to the changes, the relevant Commissioner (Race Discrimination Commissioner, Sex Discrimination Commissioner or Disability Discrimination Commissioner) had the function of investigating and conciliating complaints under the RDA, SDA and DDA. The Commissioner could refer complaints, which were not resolved, to HREOC for determination.

Where there was an issue of enforcement of a HREOC determination an application could be made to the Federal Court. The Court could make binding orders if, after a fresh hearing, it was satisfied that there had been unlawful discrimination.

Changes to Determination of Complaints

The main changes to determination of complaints are as follows:

  • the President of the Human Rights and Equal Opportunity Commission (HREOC) has the function of investigating and conciliating complaints under the RDA, SDA and DDA

  • the Federal Court and Federal Magistrates Court have power to determine such complaints which are not resolved at the conciliation stage

  • procedures for dealing with all such complaints are now contained in the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA), rather than separately in each of the RDA, SDA and DDA.

The changes are essentially procedural and do not affect the substance of the RDA, SDA and DDA. The tests to establish unlawful discrimination and liability remain the same (see Legal Briefing Number 34, Discrimination Law and Commonwealth Public Servants).

The changes only affect the powers of HREOC in dealing with complaints of unlawful discrimination under the RDA, SDA and DDA. They do not affect the powers of HREOC in dealing with other complaints of discrimination.

HREOC continues to have a power to inquire into and report on complaints of age and other forms of discrimination covered by the HREOCA.2 In such complaints HREOC can recommend payment of damages or compensation, but cannot make any binding determination.3

The Federal Court has no jurisdiction to determine such complaints (but can judicially review HREOC's decisions).

Reasons for Changes

The changes overcome the effect of the High Court's decision in Brandy v Human Rights and Equal Opportunity Commission.4The High Court held invalid the provisions of the RDA which purported to give HREOC power to make final and binding determinations.5  Under the Constitution, such judicial power cannot be vested in an administrative body like HREOC.

Following the decision in Brandy, the offending provisions of the RDA, and similar provisions in the SDA and DDA, were repealed and interim measures enacted to enable enforcement of HREOC determinations.6 The Federal Court was given power to conduct a fresh hearing into a complaint which had been determined by HREOC and to make binding orders, if the Court was satisfied that there was unlawful discrimination.

The recent changes mean that there is a need for only one hearing to finally determine a complaint. The Federal Court and Federal Magistrates Court exercise judicial power and their decisions are enforceable.

The changes can also be seen as part of the government's broader agenda to reform the function and structure of HREOC. It is proposed that HREOC's primary function will be limited to education and dissemination of information on human rights issues.7

Investigation and Conciliation by President

Following changes to the HREOCA, a complaint (whether made by an aggrieved person, or as a representative complaint) is made to HREOC, and referred to the President (section 46PD). The President must inquire into the complaint and attempt conciliation (section 46PF).

The President may convene a conciliation conference. If so, the President must require that the complainant and each respondent attend. Any other person whom the President considers will be in a position to provide information, or assist settlement, may be directed to attend.

The President has power to require a person to provide information or produce documents. This obligation extends to the production of a transcript of information recorded or stored by mechanical or electronic means (section 49A).

Failure to attend a conference without reasonable excuse incurs a penalty, as does failing without reasonable excuse to give information or produce a document.8 To knowingly provide information or make a statement which is false or misleading may incur a penalty of imprisonment for 6 months.

The conference may be presided over by the President, or by a suitable person (other than a member of the HREOC) appointed by the President (section 46PJ). The parties generally are not entitled to be represented at a conciliation conference, without the President's consent.

Conferences are conducted in private, and are 'without prejudice', ie, what is said by either party is privileged, and cannot subsequently be 'used against' that party.

Termination by President

The President may terminate  a complaint on any of the following grounds (section 46PH):

  • the President is satisfied that the alleged conduct is not unlawful discrimination

  • the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred

  • the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance

  • the President is satisfied that the subject-matter of the complaint has been adequately dealt with

  • the President is satisfied that a more appropriate remedy is reasonably available

  • 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 Federal Magistrates Court (the Explanatory Memorandum to the Human Rights Legislation Amendment Act (No. 1) 1999 states that an example may be where a complaint raises issues of such importance — for example, for the human rights of a particular group, or for the administration of the human rights legislation — that a settlement of the issues as between the parties would not be in the public interest), or

  • the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (according to the Explanatory Memorandum, this provision is intended to cover both those situations in which the President forms a view at an early stage that a matter is unlikely to be capable of successful conciliation, and those situations in which the President's attempt to settle a matter by conciliation is not successful).

If the complaint is terminated, the President must notify the complainant of the decision, and provide reasons. Once terminated (subject to revocation of a termination notice), HREOC's role comes to an end.

The President may revoke a termination notice if new evidence comes to light after a termination notice has been issued, but before proceedings have been instituted in the Court. This is consistent with the stated intention of the legislation which is to enable the parties to access less formal and less expensive conciliation procedures.

Application to Court

Once a termination notice is issued, a complainant may within 28 days make an application to the Federal Court or Federal Magistrates Court. The Federal Magistrates Court has a concurrent jurisdiction with the Federal Court in these matters (section 49B). There are no monetary jurisdictional limits on the Federal Magistrates Court in such matters.

Unless otherwise indicated, references below to the 'Court' include both the Federal Court and the Federal Magistrates Court.

A complainant will need to choose whether to pursue proceedings either in the Federal Court or the Federal Magistrates Court. Generally the forum will simply be a matter for election by the complainant. However, the Federal Magistrates Court does have power to transfer proceedings to the Federal Court, including where there are 'associated matters' in the Federal Court or where it is in the interests of the administration of justice to do so.9 The Federal Court has a similar power to transfer proceedings to the Federal Magistrates Court.10

The application must be against one or more of the respondents to the terminated complaint. The alleged unlawful discrimination must be the same as the conduct which was the subject of the terminated complaint, or must arise out of the same acts, omissions or practices that were the subject of the terminated complaint (section 46PO).

If proceedings are not instituted within 28 days, the matter is at an end, subject to the power of the Court to grant an extension of time within which an application may be brought.

Parties

Generally the parties are the person who is allegedly aggrieved by the unlawful discrimination (the applicant) and the person(s) allegedly responsible for any unlawful discrimination (the respondent(s)).

An applicant must inform HREOC of any application to the Court. A relevant Commissioner may seek the consent of the Court to appear in the Court proceedings. Grounds on which a

Commissioner may seek to appear are:

  • the orders sought may significantly affect the human rights of persons not involved in the proceedings

  • the proceedings may have significant implications for the administration of the SDA, RDA or DDA, or

  • the proceedings raise special circumstances such that the relevant Commissioner believes the public interest would be served by their intervention.11

A representative application may be made in accordance with the usual Court requirements for representative proceedings (such as Order 73 of the Federal Court Rules), for example, where there are the common questions of law and fact.

Court Procedure

The Court has its usual powers for management of a case towards hearing. For example, the Court may make orders for pre-trial discovery.12

The Federal Court has made some Rules which apply specifically to discrimination matters.13 For example, an application, and a defence to an application, must be supported by an affidavit.14 At the time of preparation of this briefing the Federal Magistrates Court had not made any relevant procedural rules. Until such time as the Federal Magistrates Court makes its own rules as to discrimination proceedings, its procedures are generally subject to the relevant Federal Court Rules.

Generally it will be a matter for the parties to put relevant material before the Court. However, the President of HREOC may provide a written report to the Court about the complaint, provided that the report does not refer to anything which occurred in a conciliation conference.

The Federal Court and Federal Magistrates Court are not bound by technicalities or legal forms in proceedings in discrimination matters (section 46PR). The Explanatory Memorandum to the Human Rights Legislation Amendment Act (No. 1) 1999 states (at para 215) that:

[t]his section is intended, amongst other things, to provide a legislative framework for the Court to develop appropriate practices and procedures to facilitate the determination of human rights proceedings. It aims to ensure that the Court processes are accessible, efficient and as sensitive as possible to the needs of the parties, while not compromising the Court's overriding objective of deciding matters according to law as a court exercising the judicial power of the Commonwealth.

In addition, in accordance with its generally applicable obligations, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.15

Representation

Parties to proceedings in the Federal Court or Federal Magistrates Court may be represented. There is a right to legal representation. Previously HREOC consent was required for legal representation at a hearing before HREOC.

Powers of Court

The Court may grant an interim injunction pending determination of the proceedings, although an undertaking as to damages (which is usual in injunctions granted in other types of matters) cannot be a condition to the grant of an injunction.

If satisfied that there has been unlawful discrimination, the Court may:

  • make declarations as to the conduct, and direct the respondent not to repeat or continue the unlawful discrimination

  • order the respondent to perform any reasonable act or course of conduct to redress any loss or damage

  • order reinstatement of an applicant

  • order payment of damages

  • require the respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant, or

  • make an order that it would be inappropriate for any further action to be taken (section 46PO).

The Court has power to order the payment of legal costs.

Transitional Provisions

Complaints which as at 13 April 2000 were at the investigation or conciliation stage under the old RDA, SDA or DDA continued to be investigated and conciliated by the President. Generally other complaints were terminated as at 13 April 2000 and the complainants could make applications to the Federal Court within 28 days of termination.

If a substantive hearing had begun prior to 13 April 2000, the matter proceeded under the old legislation.

Impact of Amendments

The Federal Court has already demonstrated that in discrimination cases it will adopt its usual active approach to case management. The Court has generally set down at the first directions hearing a tight timetable (for example,  4 months in total) for discovery, affidavits and hearing.

The Federal Court and Federal Magistrates Court can be expected to build on the already substantial body of Federal Court jurisprudence in discrimination law. The existing Federal Court case law has arisen by way of the Court's judicial review of HREOC determinations. However, in its new jurisdiction the Federal Court can be expected to display the same rigorous approach in ensuring that discrimination claims are decided according to law. The provision that the Court is not bound by technicalities or legal forms provides scope for the Court to extend some procedural indulgences to complainants, but should not impact on the application of the substantive law in determining liability.

The Federal Magistrates Court is a relatively new body and is yet to deal with any discrimination proceedings. However, the Court is part of the federal judicial system, its decisions are subject to appeal to the Federal Court, and the Federal Magistrates Court can be expected to deal with substantive issues in discrimination proceedings consistent with the existing Federal Court jurisprudence.

Awards of damages by HREOC were relatively low compared with court awards of common law damages in cases involving similar injury or loss. HREOC decisions provide the current benchmark for comparative awards in cases before the Federal Court and the Federal Magistrates Court. The level at which the Court will set its awards is uncertain.

Commonwealth agencies can anticipate that the Court's power to award costs should prove a disincentive for unmeritorious claims of unlawful discrimination.

NOTES

  1. Human Rights Legislation Amendment Act (No. 1) 1999 Act No. 133 of 1999. Amendments to the Human Rights and Equal Opportunity Commission Act 1986, which conferred jurisdiction on the Federal Magistrates Court, were made by the Federal Magistrates (Consequential Amendments) Act 1999 with effect from 13 April 2000.
  2. HREOCA covers discrimination on the basis of race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, impairment, martial status, mental intellectual or psychiatric disability, nationality, physical disability, sexual preferences or trade union activity.
  3. Changes are proposed by the Human Rights Legislation Amendment Bill (No. 2) 1999. These include removal of the power to recommend payment of damages or compensation.
  4. (1995) 183 CLR 245
  5. The result was that HREOC retained a power to determine complaints but provisions of the RDA which purported to make those determinations binding, on parties other than the Commonwealth and Commonwealth authorities, became invalid. The legislation validly required Commonwealth authorities to comply with HREOC determinations.
  6. Human Rights Legislation Amendment Act 1995, Act No 59 of 1995.
  7. Human Rights Legislation Amendment Bill (No.2) 1999. Proposed changes include the renaming of HREOC to the Human Rights and Responsibilities Commission and further changes to the structure of HREOC. It is proposed to abolish the five Commissioner positions (Race, Sex and Disability Discrimination Commissioners, Human Rights Commissioner and Aboriginal and Torres Strait Island Social Justice Commissioner) and to create three Deputy President positions.
  8. The penalty is in each case 10 penalty units. The privilege against self-incrimination is one example of a reasonable excuse (section 46PM).
  9. Section 39 of the Federal Magistrates Act 1999.
  10. Section 32AB of the Federal Court of Australia Act 1976.
  11. The Human Rights Legislation Amendment Bill (No. 2) 1999 proposes that the new Human Rights and Responsibilities Commission will be able to intervene in Court proceedings only with the consent of the Attorney-General.
  12. This is a standard procedure whereby each party provides a list of the documents relevant to the issues in dispute which that party has (or has had) in his or her custody, possession or control, and subsequently makes those documents available for inspection, subject to any claims of privilege. Discovery is allowed in the Federal Magistrates Court only where the Court declares that it is appropriate in the interests of the administration of justice to allow the discovery, having regard among other things to whether the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings (section 45 of the Federal Magistrates Act).
  13. Order 81 of the Federal Court Rules.
  14. Generally a defence must be filed within 7 days of the first directions hearing unless the Court otherwise orders: Order 11 Rule 20.
  15. Section 42 of the Federal Magistrates Act.

For further information please contact  Paul Vermeesch of our Canberra office on tel (02) 6246 1202 or e-mail paul.vermeesch@ags.gov.au, or any of the following lawyers:

Canberra 

Tom Howe

(02) 6246 1256

 

Peter Lahy

(02) 6253 7085

 

Genevieve Ebbeck

(02) 6253 7110

Sydney 

Andras Markus 

(02) 9581 7472

 

Jim Heard

(02) 9581 7477

Melbourne

Stephen Lucas

(03) 9242 1200

Brisbane

Maurice Swan

(07) 3360 5702

Perth

Peter Corbould

(08) 9268 1158

Adelaide

Sarah Court 

(08) 8205 4231

Hobart 

Peter Bowen

(03) 6220 5474

Darwin

Rick Andruszko

(08) 8943 1400


ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

For enquiries regarding supply of issues of the Briefing, change of address details etc, Tel: (02) 6253 7052 or Fax: (02) 6253 7313 or e-mail: publications@ags.gov.au. A copy of this article will be published in the 'For Clients' section of our web site: http://ags.gov.au.

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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