Federal court to determine discrimination complaints

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Federal court to determine discrimination complaints

Complaints of discrimination made under federal equal opportunity laws will soon have to be determined by the Federal Court as opposed to the Human Rights and Equal Opportunity Commission (HREOC).

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Complaints of discrimination made under federal equal opportunity laws will soon have to be determined by the Federal Court as opposed to the Human Rights and Equal Opportunity Commission (HREOC).

The Human Rights Legislation Amendment Bill 1996 is intended to overcome the High Court’s decision in Brandy’s case (1995) 183 CLR 245. The Court held in that case that HREOC, being a non-judicial body, did not have the constitutional power to enforce its own decisions.

The effect of Brandy’s case was that, although HREOC continued to arbitrate matters, a party who suffered an adverse decision was free to ignore the result. Consequently, the prosecuting party would have to run the matter all over again before the Federal Court in order to obtain an enforceable decision.

Under the proposed legislation, HREOC will maintain its powers to receive complaints, investigate them, and attempt to conciliate them.

On the other hand, complainants wanting to prosecute a matter beyond conciliation will now have to apply straight to the Federal Court to achieve a final determination. Remedies available to the Court will include damages, re-employment, as well as ordering the respondent to perform a reasonable course of conduct.

In terms of procedure in the Federal Court, discrimination complaint matters will not be bound by the technicalities or legal forms which apply in other Federal Court proceedings.

Parties may appear in person, be represented by a barrister or solicitor, or by an agent (unless the Court considers that it is inappropriate for the agent to appear). In certain matters, such as matters involving the public interest, HREOC Commissioners may appear, with leave of the Court, as "special purpose Commissioners" in order to provide assistance to the Court.

The transfer of discrimination matters to the Federal Court is likely to raise the legal costs associated with discrimination claims. However, there is provision for both complainants and respondents to apply to the Attorney-General for financial assistance. This will be provided in cases of hardship.

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