Australian Human Rights Commission Act 1986

Human rights under s 3(1) means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument, with the Covenant being the International Covenant on Civil and Political Rights in Schedule 2, the Declarations comprising the 1959 Declaration of the Rights of the Child, 1971 Declaration on the Rights of Mentally Retarded Persons and 1975 Declaration on the Rights of Disabled Persons in Schedules 3 to 5, and relevant international instruments declared under s 47. Discrimination, except in Part IIB, means distinctions, exclusions or preferences on grounds of race, colour, sex, religion, political opinion, national extraction or social origin, or other grounds declared by regulation, that nullify or impair equality of opportunity or treatment in employment or occupation, subject to exceptions for inherent job requirements and religious susceptibilities. Unlawful discrimination means acts, omissions or practices unlawful under Part 4 of the Age Discrimination Act 2004, Divisions 1, 2, 2A, 3 or 6 of Part 2 of the Disability Discrimination Act 1992, Part II or IIA of the Racial Discrimination Act 1975, or Part II of the Sex Discrimination Act 1984, plus specified offences under those Acts. Systemic unlawful discrimination under s 35L(2) means unlawful discrimination affecting a class or group of persons that is continuous, repetitive or forms a pattern. The positive duty in relation to sex discrimination means s 47C of the Sex Discrimination Act 1984. An act includes refusal or failure to act, and extends to acts done by or on behalf of the Commonwealth or a Commonwealth authority under an enactment or wholly or partly within a Territory. A complaint under s 46P must be in writing, reasonably arguable as unlawful discrimination, and set out details as fully as practicable. A representative complaint under s 46PB requires complaints against the same person arising from the same or similar circumstances with a substantial common issue of law or fact. A representative application under s 46POA requires written consents, a description of persons, certification of consents and specification of relief. A compliance notice under s 35F(1) sets out required action or refraining within a reasonable period of at least 21 days. An enactment means a Commonwealth or Territory enactment, and a proposed enactment includes Bills and instruments prepared by government or specified bodies.

The Act affects the Australian Human Rights Commission, its President as senior member and accountable authority under the Public Governance, Performance and Accountability Act 2013, and appointed members including the Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner, Age Discrimination Commissioner, Disability Discrimination Commissioner and National Children's Commissioner. It affects complainants who lodge complaints under s 46P or make written complaints under s 20(1), affected persons on whose behalf complaints are lodged, respondents against whom complaints are made, and persons who may be required to attend conferences or provide information under ss 46PI and 46PJ. It affects the Commonwealth and Commonwealth authorities for acts or practices under s 3(1), and binds the Crown in right of the States for Part IIB functions. It affects employers, employees and trade unions in relation to discrimination in employment or occupation, and government agencies that may receive notices under s 46K or s 46ML for information. It affects detainees in custody who have rights to prepare and send sealed complaints under s 20(6) to (8). It affects intelligence agencies, defined in s 11(4) to include ASIS, ASIO, ONI, ASD, AGO and DIO, whose acts or practices are excluded from inquiry under s 11(3), with referrals to the Inspector-General of Intelligence and Security. It affects courts through provisions for applications under s 46PO and interim injunctions under s 46PP, and special purpose Commissioners who may act as amicus curiae under s 46PV. It affects persons making representative applications under s 46POA and class members who may opt out under s 46POB. It affects the Minister for declarations under s 47 and arrangements under s 16, and State instrumentalities under inter-governmental arrangements.

The Commission must perform its functions with regard to the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights, and efficiently for the greatest possible benefit to the people of Australia under s 10A(1), though no enforceable duty is created under s 10A(2). The President must consider whether to inquire into complaints, terminate without inquiry if of the opinion it should be terminated, or inquire and attempt conciliation under s 46PF(1), and must act fairly and expeditiously with best endeavours to finish within 12 months of referral under s 46PF(10) and (11), though these duties are not enforceable in court but do not affect natural justice obligations. The Commission must decide within two months whether to inquire into a human rights complaint under s 20(3) and give written notice and reasons if it decides not to inquire or continue under s 20(4). Complainants have the right to lodge written complaints alleging unlawful discrimination under s 46P(1), to withdraw with the President's leave under s 46PG where all affected persons agree, and to apply to court within 60 days of termination notice under s 46PO(2). Affected persons who are not complainants are entitled to a copy of termination notice on request under s 46PH(3). Detainees have the right to facilities for preparing and sending sealed complaints and receiving sealed responses without inspection under s 20(6) to (8). The Commission must assist persons needing help to formulate complaints under s 20(5) and s 46P(4). Respondents must be notified of inquiries and adverse allegations under s 46PF(7) and (8), unless safety prejudice applies. Persons required to give information or produce documents under s 46PI have a reasonable excuse defence including self-incrimination for individuals under s 46PM(1A) and (3). The President may revoke termination before a court application under s 46PH(4). Special purpose Commissioners have duties to promote discussion and awareness, undertake research and educational programmes, and examine enactments under s 46C(1) for the Aboriginal and Torres Strait Islander Social Justice Commissioner and under s 46MB(1) for the National Children's Commissioner. The Commission must not regard enactments or acts as inconsistent with human rights solely because they secure advancement of particular persons or groups under s 11(2).

A person shall not hinder, obstruct, molest or interfere with a member participating in an inquiry or a person acting for the Commission, with a penalty of 10 penalty units under s 26(1). Victimisation by refusing to employ, dismissing, threatening to dismiss, prejudicing, intimidating, coercing, imposing penalties or taking disciplinary action by reason of making or proposing to make a complaint, alleging inconsistency with human rights, furnishing information or documents, or giving evidence carries penalties of 25 penalty units or imprisonment for 3 months or both for natural persons, and 100 penalty units for bodies corporate under s 26(2), with a defence that the allegation was false and not made in good faith under s 26(3). Failure to comply with a requirement to attend a conference under s 46PJ(3) is a strict liability offence with 10 penalty units under s 46PJ(5) and (6). Failure to give information or produce documents when required under s 46PI is an offence with 10 penalty units under s 46PM(1), subject to reasonable excuse. Knowingly giving false or misleading information or making a false or misleading statement to the Commission, President or person exercising powers is an offence with imprisonment for 6 months under s 46PN. Contravention of a direction prohibiting or restricting publication of evidence or information is a strict liability offence with 10 penalty units under s 14(7) and (7A). The President may give compliance notices under s 35F(1) specifying action, a reasonable period of at least 21 days, and evidence requirements, and may apply for court orders directing compliance under s 35J if the notice is not complied with. Enforceable undertakings may be accepted under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, with the President as authorised person and delegation to SES or Executive Level 2 staff under s 35K. The Commission, members and persons acting for the Commission are protected from civil actions for good faith acts or omissions under s 48(1) and (2). Members, staff and agents must not record, divulge or use private information acquired in duties, with penalties of 50 penalty units or imprisonment for 1 year under s 49. Courts may award costs under s 46PSA, with successful applicants entitled to costs against successful respondents on an indemnity or other basis, and restrictions on ordering costs against applicants except in cases of vexatious proceedings, unreasonable acts or omissions, or where respondents lack significant power or financial advantage.

The Act is not intended to exclude or limit concurrent State or Territory laws under s 4(1), and where an act or omission constitutes an offence under both, a person may be prosecuted under either but not punished more than once under s 4(2). Unlawful discrimination is defined by reference to specific parts of the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984 under s 3(1). The Minister may make arrangements with State Ministers for joint performance of functions, performance by States on behalf of the Commonwealth, or performance by the Commission on behalf of States under s 16(1), with acts done under such arrangements deemed done by or in relation to the President under s 16(2A), and arrangements published in the Gazette under s 16(4). The Minister may declare by Gazette notice that a State enactment function may conveniently be performed by the Commission under s 18. Complaints alleging discriminatory acts under industrial instruments may be referred to the Fair Work Commission under s 46PW(2) if they appear discriminatory, with direct compliance not of itself meaning the act is reasonable under s 46PW(8). Similar referrals apply to Remuneration Tribunal determinations under s 46PX and Defence Force Remuneration Tribunal determinations under s 46PY. The positive duty under s 47C of the Sex Discrimination Act 1984 is enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 under s 35K. The Act applies Chapter 2 of the Criminal Code to all offences under s 6A. The President is the accountable authority under the Public Governance, Performance and Accountability Act 2013 under s 8A(4). The Commission may make administrative services available to the Information Commissioner under s 43A. Complaints may be transferred to the Information Commissioner where the subject matter could more effectively be dealt with as an interference with privacy under s 20(4A), and to the Inspector-General of Intelligence and Security for ACIC or Australian Federal Police matters under s 20(4C). The Act provides for just terms compensation for property acquisition under s 49C. Regulations may prescribe matters under s 50.

The Act includes provisions for inquiring into compliance with the positive duty in relation to sex discrimination under Division 4A, with the Commission preparing guidelines, promoting understanding, undertaking research and educational programmes, inquiring where it reasonably suspects non-compliance under s 35B(1), giving notice of grounds under s 35C(1), and issuing compliance notices under s 35F(1) that specify required action within at least 21 days. These provisions allow the President to reconsider notices under s 35G and apply for court enforcement orders under s 35J, and permit enforceable undertakings under s 35K that may be published on the Commission website. The Act also includes Division 4B for inquiries into systemic unlawful discrimination under s 35L(1), performed on Minister request or where desirable under s 35M, with information powers under s 35N, no adverse finding without opportunity for submissions under s 35P, and reports with recommendations under s 35Q. These mechanisms extend the Commission's role beyond individual complaints to address patterns affecting classes or groups and to ensure adherence to obligations under the Sex Discrimination Act 1984. The Act further provides for the National Children's Commissioner under Part IIAA with functions to promote discussion and awareness of children's human rights, undertake research and educational programmes, examine enactments for recognition and protection of those rights, and give particular attention to children at risk or vulnerable under s 46MB(4), with reports that may include recommendations under s 46MB(3A). The Aboriginal and Torres Strait Islander Social Justice Commissioner under Part IIA performs functions to promote discussion of human rights in relation to Aboriginal persons and Torres Strait Islanders, undertake research and educational programmes, examine enactments, and submit reports on the enjoyment and exercise of those rights and on the operation of the Native Title Act 1993 under s 46C(2A) and (2B). These elements strengthen the Commission's capacity to address specific groups and systemic issues through structured inquiry and reporting processes.

The Act establishes a framework for applications to the Federal Court or Federal Circuit and Family Court of Australia (Division 2) under s 46PO(1) alleging unlawful discrimination by respondents to a terminated complaint, where the alleged discrimination must be the same or substantially the same as in the terminated complaint or arise from the same or substantially the same acts, omissions or practices under s 46PO(3). Applications must be made within 60 days of notice or further time allowed under s 46PO(2), and require court leave unless the complaint was terminated under s 46PH(1)(h) or s 46PH(1B)(b) under s 46PO(3A). If satisfied of unlawful discrimination, the court may make declarations that the respondent committed unlawful discrimination, directions not to repeat or continue it, orders requiring reasonable acts to redress loss or damage, orders for employment or re-employment, orders for damages by way of compensation, orders varying termination of contracts, or declarations that no further action is appropriate under s 46PO(4). Representative applications under s 46POA require written consent of each person on whose behalf the application is made, a description of those persons, a statement certifying consents, and specification of the nature of the relief sought. Additional rules under s 46POB prohibit separate applications on the same subject matter unless a person opts out, require the court to fix an opt-out date, prohibit hearings before the opt-out date without leave, and require court approval for settlement or discontinuance with just orders for distribution of money. Interim injunctions to maintain the status quo as it existed before lodgement or rights of complainants, respondents or affected persons may be granted at any time after lodgement under s 46PP(1), with applications by the Commission, complainant, respondent or affected person under s 46PP(2), and no undertaking as to damages required under s 46PP(5). Special purpose Commissioners may assist the court as amicus curiae with leave in proceedings where orders may affect to a significant extent human rights of non-parties, have significant implications for administration of the Act, or involve special circumstances in the public interest under s 46PV(1) and (2). The President may provide a written report on a terminated complaint to the court and parties under s 46PS(1), excluding anything said or done in conciliation under s 46PS(2). Costs rules under s 46PSA require the court to order successful respondents to pay the applicant's costs, which may be assessed on an indemnity basis, but prohibit orders for costs caused by the applicant's unreasonable act or omission, and restrict orders against applicants except in vexatious cases, unreasonable acts or omissions, or where successful respondents lack significant power or financial advantage.

Complaints of unlawful discrimination must be lodged within 24 months after the acts, omissions or practices, or the President may terminate under s 46PH(1)(b), while human rights complaints more than 12 months old may lead to a decision not to inquire under s 20(2). The President must terminate if satisfied the complaint is trivial, vexatious, misconceived or lacking in substance or there is no reasonable prospect of settlement by conciliation under s 46PH(1B), or if there is no reasonable prospect the court would find unlawful discrimination under s 46PH(1C). Court applications require leave unless terminated under s 46PH(1)(h) or s 46PH(1B)(b) under s 46PO(3A), and applicants face costs risks if proceedings are vexatious or without reasonable cause or involve unreasonable acts or omissions under s 46PSA(5). Representative complaints under s 46PB require a substantial common issue of law or fact, and class members may withdraw before termination under s 46PC. Amendments to add respondents require the President's leave under s 46PF(3) and are not permitted after termination under s 46PF(4). Conferences under s 46PJ require at least 14 days' notice, and non-compliance is a strict liability offence. Information or documents from intelligence agencies must be notified to the agency under s 21(3). The Commission does not inquire into intelligence agency acts or practices under s 11(3), and suspected non-compliance with the positive duty by intelligence agencies must be referred to the Inspector-General under s 11(3B). Confidentiality obligations under s 49 prohibit recording, divulging or using private information, with limited exceptions for performance of duties or other Acts. Settlements must reflect recognition of human rights under s 28 or equality of opportunity under s 34. The President cannot delegate powers under Part IIB or IIC to another member under s 19(2A), and certain human rights functions may only be delegated to the Human Rights Commissioner under s 19(2B). Compliance notices cannot be given if an undertaking is in force under s 35F(3). The Act does not apply to acts or practices of intelligence agencies for positive duty or systemic unlawful discrimination inquiries under s 11(3A) and (3C).

Organisations subject to complaints should respond promptly to notifications under s 46PF(7) and (8), participate in conciliation conferences under s 46PJ in a manner that avoids disadvantaging parties under s 46PK(2), and provide information or documents when required under s 46PI while claiming reasonable excuse where applicable. Employers must avoid victimisation under s 26(2) by ensuring no detriment is imposed by reason of complaints or provision of information. Persons lodging complaints should ensure they are in writing, reasonably arguable as unlawful discrimination, and set out details fully under s 46P(1), and seek assistance from the Commission if needed under s 46P(4). For representative complaints, ensure complaints arise from the same or similar circumstances with a substantial common issue under s 46PB, and obtain consents for representative applications under s 46POA(1). When facing compliance notices under s 35F, provide evidence of action within the specified period and consider requesting reconsideration under s 35G within 21 days. Special purpose Commissioners should consult appropriate organisations under s 46C(3) and have regard to specified international instruments under s 46C(4) and s 46MB(6). The Commission and staff must maintain confidentiality under s 49, balance publication directions under s 14(5) and (6), and act fairly and expeditiously under s 46PF(6) and (10). For court proceedings, prepare applications within time limits, seek leave where required, and consider Attorney-General assistance under s 46PU on hardship grounds. All parties should note that conciliation statements are inadmissible except for costs purposes under s 46PKA, and that the President may provide reports excluding conciliation details under s 46PS. Organisations should review internal policies to align with guidelines published by the Commission under s 11(1)(n) and s 35A(a), and ensure settlements reflect recognition of human rights under s 28.