Significant changes to procedures under federal discrimination legislation: amendments to the Australian Human Rights Commission Act 1986 (Cth)

Recently, significant changes to the complaints handling procedures under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) have been introduced. The AHRC Act establishes the Australian Human Rights Commission (Commission) – the statutory body responsible for the administration of Federal discrimination legislation.

Generally, any person who wants to make a complaint of unlawful discrimination under the Federal discrimination legislation must first make the complaint to the Commission. While, the Commission does not have the power to decide if unlawful discrimination has occurred, it attempts to resolve complaints through a process of conciliation. If the complaint cannot be resolved through the Commission, the person may then make an application to the Federal Court (FC) or the Federal Circuit Court (FCC).

The changes to the AHRC Act amend the Commission’s complaints handling process to ensure that unmeritorious complaints are discouraged or terminated at the earliest opportunity and respondents do not incur unnecessary costs in defending such complaints. The amendments to the AHRC Act include provisions that:

• raise the threshold required for the Commission to accept a complaint;
• confer additional powers to the President of the Commission to terminate unmeritorious complaints;
• require the President of the Commission to notify all respondents to a complaint;
• require an applicant to seek the leave of the FC or the FCC to make an application alleging unlawful discrimination, if that complaint was previously terminated by the President, except if the complaint concerns an issue of public importance or if there was no reasonable prospect of the complaint being settled by conciliation; and
• require the Commission to inform applicants of the costs jurisdiction of the FC and the FCC.

Each of these amendments are considered in turn below.

Threshold requirements

Previously, the threshold required before the Commission would accept a complaint was low (i.e. an applicant could make a bare allegation of unlawful discrimination and was not required to provide any particulars). The amendments to the AHRC Act raise the threshold in that it must now be ‘reasonably arguable’ that the alleged acts, omissions or practices are unlawful discrimination. Further, the applicant must now specify in his or her complaint, as fully as practicable, the details of the alleged acts, omissions or practices in order to substantiate why the conduct alleged constitutes unlawful discrimination (see s 46P of the AHRC Act).

These amendments will enable the Commission to make an informed initial assessment of the complaint to ensure that unmeritorious complaints are dismissed by the Commission upon lodgement and may also act to discourage frivolous complainants.

Termination of complaint

If an unlawful discrimination complaint is made to the Commission, the Commission must refer the complaint to the President. The President must then consider whether to terminate the complaint before he or she proceeds to make inquiries or attempts to conciliate the complaint. The changes to the AHRC Act introduce additional grounds (one discretionary and three mandatory) on which the President can terminate a complaint (see s 46PH of the AHRC Act).

The additional grounds are as follows:

• the President may terminate a complaint if satisfied, having regard to all of the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
• the President must terminate a complaint if satisfied that the complaint is trivial, vexatious, misconceived or lacking in substance;
• the President must terminate a complaint if satisfied that there is no reasonable prospect of the matter being settled by conciliation; and
• the President must terminate a complaint if satisfied that there would be no reasonable prospect that the FC or FCC would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.

The President must also consider whether an exemption to unlawful discrimination applies when considering whether or not to terminate a complaint.

While, there is no strict limitation period within which a complaint must be lodged with the Commission, prior to the amendments, the President had a discretion to terminate a complaint lodged more than 12 months after the alleged conduct occurred. The President may now terminate a complaint (which concerns events occurring after 13 April 2017) lodged more than six months after the alleged conduct occurred.

Respondents to be notified

Although, the Commission as a matter of practice would generally notify respondents to a complaint, it was not required, under the AHRC Act, to do so until the conciliation conference stage. The amendments to the AHRC Act now require the President, if he or she has decided to inquire into a complaint, to notify the respondent to the complaint, unless the President is satisfied that notification would be likely to prejudice the safety of a person. The President must also notify any other person the subject of an adverse allegation arising from the complaint, unless that notification would be likely to prejudice the safety of a person or it is not practicable to do so (see s 46PF(7) of the AHRC Act).

These amendments to the AHRC Act seek to address the notification deficiencies under the AHRC Act identified in the case of Prior v Queensland University of Technology [2016] FCCA 2853 which highlighted that respondents were not always promptly notified of the existence of a complaint.

Leave of Court

Previously, there was no barrier to a person, whose complaint had been terminated by the President on the basis that it was trivial, vexatious, misconceived or lacking in substance, from making an application to the FC or the FCC. The changes to the AHRC Act introduce a new requirement that a person seek the leave of the FC or the FCC to make an application alleging unlawful discrimination, if that complaint was previously terminated by the President (see s 46PO of the AHRC Act). The only two exceptions to this new requirement are if:

• the complaint was terminated on the basis that the President was satisfied that the subject matter of the complaint involved an issue of public importance that should be considered by the FC or the FCC; or
• the complaint was terminated on the basis that the President was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

Costs

The amendments to the AHRC Act now require the President, when he or she terminates a complaint, to provide a statement to an applicant explaining that the FC and the FCC can award costs (see s 46PH(2A) of the AHRC Act). This amendment should discourage unmeritorious complaints and help to ensure that respondents do not incur unnecessary costs.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}