Implications and transitional effects of new human rights legislation

Analysis

Implications and transitional effects of new human rights legislation

Passing through the Senate with amendments on 20 September 1999, the Human Rights Legislation Amendment Act (No. 1) 1999 completed its passage through both Houses of Parliament, when the House of Representatives approved those amendments on 23 September 1999.

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Passing through the Senate with amendments on 20 September 1999, the Human Rights Legislation Amendment Act (No. 1) 1999 completed its passage through both Houses of Parliament, when the House of Representatives approved those amendments on 23 September 1999. The Act was assented to on 13 October 1999, and as such it is anticipated that changes will take effect on 13 April 2000.

The essence of the Amendment Act is that it changes the hierarchy of procedures utilised in the resolution of federal human rights complaints. A human rights complaint commences with conciliation before the Human Rights and Equal Opportunity Commission (HREOC). In the past, once this process had been exhausted, a hearing before HREOC would result in what was considered to be a binding determination. The 1995 High Court decision in Brandy v HREOC & Ors, held that HREOC could not make enforceable decisions. As an administrative body, decisions of HREOC were held by the High Court to be of a recommendatory nature, and as such were not binding on parties. To acquire a binding decision, parties were required to have the matter heard before the Federal Court. The Amendment Act eliminates the middle process. Rather than having a matter heard in both the Commission and then the Federal Court, once conciliation before HREOC has failed, parties to a human rights matter may now elect to access the Federal Court directly.

Overview of changes

The Amendment Act inserts a new Part IIB into the Human Rights and Equal Opportunity Commission Act 1986. The new Part outlines the provisions for redress for complaints of unlawful discrimination and canvasses the entire process from conciliation by the President of the Commission through to proceedings in the Federal Court. The Commission will continue to exercise a conciliatory role, investigating and attempting to settle complaints. However the Commission will not hold public hearings. This will be done by the Federal Court.

Once a written complaint alleging unlawful discrimination is lodged with the Commission, s46PD requires the Commission to refer the complaint to the President. At this stage the new s46PF requires the President to inquire into the complaint and attempt conciliation. In the course of inquiring into a complaint and attempting conciliation, the President may pursuant to s46PJ decide to hold a conference in which each complainant and respondent is directed to attend.

Following conciliation, if a matter cannot be settled, then the Commission must terminate the complaint. The Commission may also terminate a complaint on other grounds, which are outlined in s46PH. Grounds for terminating conciliation include the following: 

  • the President is satisfied that the complaint does not constitute unlawful discrimination;
  • the complaint was lodged more than 12 months after the alleged unlawful discrimination;
  • the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance;
  • the complaint was adequately dealt with under another remedy;
  • the President is satisfied that the complaint is an issue of public importance and ought to considered by the Federal Court;
  • the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.

If a complaint is terminated, the President is obligated by s46PH(2) to issue a termination notice, notifying the complainants in writing of the decision and the reasons for terminating the complaint. The Commission can no longer deal with a complaint once it has been terminated and therefore the Commission's file on the matter will be closed.

Upon receipt of a termination notice a complainant will be able to apply to the Federal Court for a hearing. The Commission itself cannot refer matters to the Federal Court. It is for the complainant to decide whether they wish to pursue a matter in the Federal Court. Section 46PO(2) provides that an application to the Federal Court must be made within 28 days of the termination notice being issued.

Division 2 of Part IIB examines the framework of human rights proceedings in the Federal Court. If the Court is satisfied that there has been unlawful discrimination then s46PO(4) provides that the Court may make any order it thinks fit, including:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring the respondent to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent employ or re-employ an applicant;

(d) an order requiring a respondent pay damages;

(e) an order requiring the respondent to vary the termination of a contract or agreement to redress loss or damage;

(f) an order declaring it inappropriate for further action to be taken in the matter.

Parties to proceedings under Div 2 of Pt IIB of the Act may appear in person or be represented by a barrister or solicitor. However, under s46PQ parties are not required to have legal representation in the Federal Court, a person other than a barrister or solicitor may act as a representative provided the Federal Court thinks that the person is an appropriate representative.

The changes effected by the Amendment Act seek to ensure that proceedings in the Federal Court are user friendly and that the new processes are accessible, efficient and as sensitive as possible to the needs of the parties. As such sec 46PR provides that in proceedings under this division, the Federal Court is not bound by technicalities or legal forms.

Throughout the debate in Parliament during the passage of the Amendment Act concerns were raised in relation to the cost of running Federal Court cases. The Government responded to these concerns by providing that a nominal application fee of $50 would apply to human rights matters in the Federal Court. In terms of cost rulings the Court will have the usual discretion to award costs.

Transitional effects of the changes on individual complaints

Given that the Amendment Act provides investigative and conciliatory processes that are substantially the same as the current ones, matters that are being investigated or are in the process of conciliation will not be substantially affected. As of the commencement date (13 April 2000), complaints under investigation or in conciliation will be transferred to the new process and the Commission will continue to investigate and conciliate these complaints as before. If however, the Commission notified a relevant Commissioner of a compliant prior to 13 April 2000, and the Commissioner had yet to make a decision about whether or not to inquire into the complaint, then after 13 April 2000 the complaint will be referred to the President under the new s46PD.

Complaints that are in the process of a review by the President will be affected and on 13 April 2000 will be terminated by the President pursuant to s46PD. In these instances, the President will also be required to give a notice of termination of the complaint. Complaints that have been referred to a public hearing will be affected unless the public hearing into the complaint commenced prior to 13 April 2000. After 13 April 2000, Commission cannot deal with complaints that have been referred for hearing but the hearing has yet to commence.

Does HREOC have a future role?

The Deputy Disability Discrimination Commissioner, Graeme Innes, contends that Commission has significant public role in the future. According to the Deputy Commissioner, 

"In legal terms at least, what is being lost is not the capacity to conduct hearings at all but the post-referral hearing function, which comes after the investigation and conciliation phases". 

The Commission may undertake what it considers as appropriate means in investigating complaints. This may entail conducting public inquiries or hearings, particularly where the issue is of significant public interest. A public approach to complaint investigation will not suit every issue or complaint. However, where the complaint is a representative complaint or the details of the complaint are already in the public domain, then the public approach will raise issues of accountability and justice for those whose interests are being represented.

 
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