Legal Briefing No. 57

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)

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The material in this briefing is provided
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AGS before any action or decision is taken on the basis
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