20Performance of functions relating to human rights

#### 20 Performance of functions relating to human rights (1) Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when: (a) the Commission is requested to do so by the Minister; or (b) a complaint is made in writing to the Commission, by or on behalf of one or more persons aggrieved by an act or practice, alleging that the act or practice is inconsistent with or contrary to any human right; or (c) it appears to the Commission to be desirable to do so. > Note: A complaint is taken to have been made to the Commission if all or part of a complaint is transferred to the Commission under section 32AG of the Inspector‑General of Intelligence and Security Act 1986 (see section 46PZ of this Act). (2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if: (a) the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right; or (b) the Commission is satisfied that the person aggrieved by the act or practice does not want the Commission to inquire, or to continue to inquire, into the act or practice; or (ba) the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the act or practice is not warranted; or (c) in a case where a complaint has been made to the Commission in relation to the act or practice: (i) the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice; or (ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; or (iib) the Commission is satisfied that there is no reasonable prospect of the matter being settled by conciliation; or (iii) where some other remedy has been sought in relation to the subject matter of the complaint—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or (iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice; or (v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or (vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority; or (vii) the Commission is satisfied that the complaint has been settled or resolved. (3) The Commission shall, before the expiration of the period of 2 months commencing when a complaint is made to the Commission in respect of an act or practice, decide whether or not to inquire into the act or practice. (4) Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall, unless the complaint has been transferred under subsection (4A), forthwith give notice in writing to the complainant of that decision and of the reasons for that decision. (4A) Where: (a) a complaint has been made to the Commission in relation to an act or practice; and (b) because the Commission is of the opinion that the subject‑matter of the complaint could be more effectively or conveniently dealt with by the Information Commissioner under the Privacy Act 1988 as an interference with the privacy of an individual under subsection 13(1) or (4) of that Act, the Commission decides not to inquire, or not to continue to inquire, into that act or practice; the Commission shall: (c) transfer the complaint to the Information Commissioner; (d) forthwith give notice in writing to the complainant stating that the complaint has been so transferred; and (e) give to the Information Commissioner any information or documents that relate to the complaint and are in the possession, or under the control, of the Commission. (4B) A complaint transferred under subsection (4A) shall be taken to be a complaint made to the Information Commissioner under Part V of the Privacy Act 1988. (4C) If: (a) a complaint has been made to the Commission in relation to: (i) an act or practice of ACIC (except an act or practice of an examiner of ACIC performing functions and exercising powers as an examiner); or (ii) an act or practice of the Australian Federal Police; and (b) because the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986, the Commission decides not to inquire, or not to continue to inquire, into that act or practice; the Commission must: (c) consult the Inspector‑General in relation to transferring the complaint or part of the complaint; and (d) if the Inspector‑General agrees to the transfer of the complaint or part of the complaint—transfer the complaint or part to the Inspector‑General as soon as is reasonably practicable; and (e) as soon as is reasonably practicable, take reasonable steps to give notice in writing to the complainant stating that the complaint or part has been so transferred; and (f) give to the Inspector‑General any information or documents that relate to the complaint or part and are in the possession, or under the control, of the Commission. (4D) Without limiting subsection (4C), the Commission may consult with, and obtain an agreement from, the Inspector‑General of Intelligence and Security by entering into an arrangement with the Inspector‑General relating to the transfer of complaints (or parts) generally. (5) Where it appears to the Commission that: (a) a person wishes to make a complaint to the effect that another person has done an act, or engaged in a practice, that is inconsistent with or contrary to any human right; and (b) that person requires assistance to formulate the complaint or to reduce it to writing; it is the duty of the Commission to take reasonable steps to provide appropriate assistance to that person. (6) A person who is detained in custody (in this subsection and subsection (7) referred to as the detainee) is entitled: (a) upon making a request to the person (in this subsection and subsection (7) referred to as the custodian) in whose custody the detainee is detained, or to any other person (in this subsection and subsection (7) referred to as a custodial officer) performing duties in connection with the detention: (i) to be provided with facilities for preparing a complaint in writing under this Division, for giving in writing to the Commission, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and (ii) to have sent to the Commission, without undue delay, a sealed envelope delivered by the detainee to the custodian or to a custodial officer and addressed to the Commission; and (b) to have delivered to the detainee, without undue delay, any sealed envelope, addressed to the detainee and sent by the Commission, that comes into the possession or under the control of the custodian or of a custodial officer. (7) Where a sealed envelope addressed to the Commission is delivered by the detainee to the custodian or to a custodial officer for sending to the Commission, or a sealed envelope addressed to the detainee and sent by the Commission comes into the possession or under the control of the custodian or of a custodial officer, neither the custodian nor any custodial officer is entitled to open the envelope or to inspect any document enclosed in the envelope. (8) For the purposes of subsections (6) and (7), the Commission may make arrangements with the appropriate authority of a State or Territory for the identification and delivery of sealed envelopes sent by the Commission to persons detained in custody in that State or Territory. (9) The Commission must act fairly in the performance of the functions referred to in paragraph 11(1)(f). (10) If a complaint is made under paragraph (1)(b), the Commission: (a) must act expeditiously in dealing with the complaint; and (b) must use the Commission’s best endeavours to finish dealing with the complaint within 12 months after the complaint was made. (11) Subsections (9) and (10) do not impose a duty on the Commission that is enforceable in court. (12) Subsection (11) does not affect a legally enforceable obligation to observe the rules of natural justice.