Federal human rights complaints to be heard by federal court

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Federal human rights complaints to be heard by federal court

A Bill which removes the discrimination complaint hearing functions of the Human Rights and Equal Opportunity Commission and transfers them to the Federal Court was introduced into federal Parliament in late December 1998.

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A Bill which removes the discrimination complaint hearing functions of the Human Rights and Equal Opportunity Commission and transfers them to the Federal Court was introduced into federal Parliament in late December 1998.

The Human Rights Legislation Amendment Bill 1998 replaces a similar Bill which lapsed at the last federal election. The Bill is a response to the decision of the High Court in Brandy v HREOC (1995) 183 CLR 245in which it was found that HREOC, as a non-judicial body, did not have the constitutional power to finally determine disputes.

The transfer of federal discrimination complaints to the Federal Court is likely to increase the cost of litigation in this area. However, when dealing with discrimination matters, the Federal Court will not be bound by technicalities or legal forms. Judges of the Federal Court will be able to delegate some but not all of their functions in this area to Judicial Registrars, who will be able to assist with additional caseloads.

Transitional provisions will apply to complaints which had been lodged under the old law but which will not have been completed at the commencement of the new law. The most significant transitional provision is that where, prior to commencement of the new law, a complaint has been referred to HREOC for a substantive hearing which has commenced, the complaint will continue to be dealt with under the old law. All other complaints will be transferred to the scheme established by the new law.

The Bill also centralises complaint investigation and conciliation in the officer of the President of the Commission; this means that the Race, Sex, and Disability Discrimination Commissioners will no longer have a role in complaint investigation.

 

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