An Act to establish the Australian Human Rights Commission, to make provision in relation to human rights and in relation to equal opportunity in employment, and for related purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Australian Human Rights Commission Act 1986.
2 Commencement
This Act shall come into operation on a day to be fixed by Proclamation.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Aboriginal person means a person of the Aboriginal race of Australia.
ACIC means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.
act means an act done:
(a) by or on behalf of the Commonwealth or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a Territory; or
(d) partly within a Territory, to the extent to which the act was done within a Territory.
affected person, in relation to a complaint, means a person on whose behalf the complaint was lodged.
Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004.
alleged acts, omissions or practices, in relation to a complaint, means the acts, omissions or practices that are alleged in the complaint.
Note: See also paragraph 23(b) of the Acts Interpretation Act 1901.
appointed member means the President or the Human Rights Commissioner.
Australia includes the external Territories.
Australian Capital Territory enactment means an enactment of the Australian Capital Territory within the meaning of the Australian Capital Territory (Self‑Government) Act 1988, or an instrument made under such an enactment.
authority means:
(a) in relation to the Commonwealth:
(i) a body (whether incorporated or unincorporated) established for a purpose of the Commonwealth by or under a Commonwealth enactment;
(ii) an incorporated company over which the Commonwealth is in a position to exercise control;
(iii) a person holding or performing the duties of an office or appointment established or made under a Commonwealth enactment or by the Governor‑General or a Minister of the Commonwealth (not being an office or appointment referred to in subparagraph (c)(iii));
(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Commonwealth for the purposes of this Act;
(b) in relation to a State:
(i) a body (whether incorporated or unincorporated) established for a purpose of the State by or under a law of the State;
(ii) an incorporated company over which the State is in a position to exercise control;
(iii) a person holding or performing the duties of an office or appointment established or made under a law, or by the Governor or a Minister, of the State;
(iv) a local government body in the State; or
(v) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the State for the purposes of this Act; or
(c) in relation to a Territory:
(i) a body (whether incorporated or unincorporated) established for a purpose of the Territory by or under a Commonwealth enactment or a law of the Territory;
(ii) an incorporated company over which the Administration of the Territory is in a position to exercise control;
(iii) a person holding or performing the duties of an office or appointment established or made under a law of the Territory or by the Administrator of a Territory; or
(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Territory for the purposes of this Act.
Division Division 5 - Australian Human Rights Commission Act 1986 - Administrative provisions | Zoe
children means people under the age of 18.
class member, in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 46PC.
Commission means the Australian Human Rights Commission established by this Act.
Commonwealth enactment means an Act or an instrument (other than a Territory enactment, an Australian Capital Territory enactment or a Northern Territory enactment) made under an Act, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.
complainant, in relation to a complaint, means a person who lodged the complaint, whether on the person’s own behalf or on behalf of another person or persons.
complaint, except in Part IIC, means a complaint lodged under Division 1 of Part IIB.
compliance notice means a notice mentioned in subsection 35F(1).
compulsory conference means a conference under section 46PJ.
Convention means the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958, a copy of the English text of which is set out in Schedule 1, as that Convention applies in relation to Australia.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia.
Declarations means:
(a) the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1959, a copy of the English text of which is set out in Schedule 3;
(b) the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly of the United Nations on 20 December 1971, a copy of the English text of which is set out in Schedule 4; and
(c) the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975, a copy of the English text of which is set out in Schedule 5.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.
discrimination, except in Part IIB, means:
(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:
(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference:
(c) in respect of a particular job based on the inherent requirements of the job; or
(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.
enactment means a Commonwealth enactment or a Territory enactment.
examiner of ACIC means an examiner within the meaning of the Australian Crime Commission Act 2002.
Federal Court means the Federal Court of Australia.
human rights means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.
IGIS official means:
(a) the Inspector‑General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.
instrument includes a rule, regulation or by‑law.
instrumentality, in relation to a State, includes:
(a) a person holding or performing the duties of an office established by or under a law of that State;
(b) a person employed in the public service of that State; and
(c) a person employed by a body established for a purpose of that State by or under a law of that State.
international instrument includes a declaration made by an international organisation.
Judge means:
(a) a Judge of a court created by the Parliament or of a court of a State; or
(b) a person who has the same designation and status as a Judge of a court created by the Parliament.
law means a law of the Commonwealth, a law of a Territory or a law of a State.
law of a State means a State enactment or any other law in force in a State, other than a law of the Commonwealth.
law of a Territory means a Territory enactment or any other law in force in a Territory, other than a law of the Commonwealth.
law of the Commonwealth means a Commonwealth enactment or any other law in force throughout Australia.
member means a member of the Commission, and includes the President.
Minister means:
(a) in relation to a State—a Minister of the Crown of that State; and
(b) in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.
National Children’s Commissioner means the National Children’s Commissioner referred to in section 46MA.
Northern Territory enactment means an enactment of the Northern Territory within the meaning of the Northern Territory (Self‑Government) Act 1978 or an instrument made under such an enactment.
positive duty in relation to sex discrimination means section 47C of the Sex Discrimination Act 1984.
practice means a practice engaged in:
(a) by or behalf of the Commonwealth or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a Territory; or
(d) partly within a Territory, to the extent to which the practice was or is engaged in within a Territory.
President means President of the Commission.
proposed enactment means:
(a) a proposed law introduced into the Parliament of the Commonwealth or the legislature of a Territory;
(b) a proposed law prepared on behalf of:
(i) the Government of the Commonwealth or the Administration of a Territory;
(ii) a Minister of State of the Commonwealth; or
(iii) a body established by law that has the function of recommending proposed laws of the Commonwealth or of a Territory; or
(c) an instrument proposed to be made under a law of the Commonwealth or under a law of a Territory.
Race Discrimination Commissioner means the Race Discrimination Commissioner appointed under the Racial Discrimination Act 1975.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant international instrument means an international instrument in respect of which a declaration under section 47 is in force.
representative application means an application under subsection 46PO(1) that is made on behalf of at least one person other than the person making the application, but does not include an application that commences a representative proceeding in accordance with Part IVA of the Federal Court of Australia Act 1976.
representative complaint means a complaint lodged on behalf of at least one person who is not a complainant.
respondent, in relation to a complaint, means the person or persons against whom the complaint is made.
Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.
State includes the Australian Capital Territory and the Northern Territory.
State enactment means a State Act or an instrument made under a State Act and includes an Australian Capital Territory enactment and a Northern Territory enactment.
systemic unlawful discrimination: see subsection 35L(2).
terminate, in relation to a complaint, means decline to inquire into the complaint, or discontinue an inquiry into the complaint.
Territory does not include the Australian Capital Territory or the Northern Territory.
Territory Act means an Act passed by a legislature of a Territory
Territory enactment means a Territory Act, an Ordinance of a Territory or an instrument made under such an Act or Ordinance, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.
Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.
trade union means:
(a) an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009; or
(b) a trade union within the meaning of any State Act or law of a Territory; or
(c) any other similar body.
unlawful discrimination means any acts, omissions or practices that are unlawful under:
(aa) Part 4 of the Age Discrimination Act 2004; or
(a) Division 1, 2, 2A, 3 or 6 of Part 2 of the Disability Discrimination Act 1992; or
(b) Part II or IIA of the Racial Discrimination Act 1975; or
(c) Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 51 or 52); or
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992 (other than section 42).
(2) In this Act, a reference to the Governor of a State shall, in relation to the Northern Territory, be construed as a reference to the Administrator of the Northern Territory.
(3) In this Act:
(a) a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and
(b) a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice shall, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.
(4) In the definition of human rights in subsection (1):
(a) the reference to the rights and freedoms recognised in the Covenant shall be read as a reference to the rights and freedoms recognised in the Covenant as it applies to Australia; and
(b) the reference to the rights and freedoms recognised or declared by any relevant international instrument shall:
(i) in the case of an instrument (not being a declaration referred to in subparagraph (ii)) that applies to Australia—be read as a reference to the rights and freedoms recognised or declared by the instrument as it applies to Australia; or
(ii) in the case of an instrument being a declaration made by an international organisation that was adopted by Australia—be read as a reference to the rights and freedoms recognised or declared by the declaration as it was adopted by Australia.
(5) A reference in this Act to the making of a declaration by an international organisation shall be read as a reference to the making or adopting of a declaration, proclamation or other statement by such an organisation in any way, whether by the passing of a resolution, the issuing of an instrument or otherwise.
(6) A reference in this Act to the adoption by Australia of an international instrument being a declaration made by an international organisation shall be read as a reference to the casting by Australia of a vote in favour of the making of the declaration by the organisation at the meeting of the organisation at which the declaration was made or to the giving of some other public notification by Australia expressing its support for the declaration.
(7) A reference in this Act to a person acting on behalf of the Commission is a reference to:
(a) a person, or each of a body of persons, acting pursuant to a delegation under section 19; or
(b) an instrumentality of a State performing a function of the Commission pursuant to an arrangement in force under section 16.
(8) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this Act, for the purposes of the operation of this Act in relation to the Convention, the same meaning as it has in the Convention.
(9) A reference in this Act to prejudice to the security, defence or international relations of Australia includes a reference to any such prejudice that might result from the divulging of information or matters communicated in confidence by or on behalf of the government of a foreign country, an authority of a government of a foreign country or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
4 Operation of State and Territory laws
(1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
(2) If:
(a) a law of a State or Territory deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
5 Extension to external Territories
This Act extends to every external Territory.
6 Extent to which Act binds the Crown
(1) This Act binds the Crown in right of the Commonwealth but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.
(1A) Part IIB binds the Crown in right of the States.
(2) Nothing in this Act renders the Crown in right of the Commonwealth or of a State liable to be prosecuted for an offence.
6A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Australian Human Rights Commission
Division 1—Establishment and Constitution of Commission
7 Australian Human Rights Commission
(1) There is established by this Act a Commission by the name of the Australian Human Rights Commission.
(2) The Commission:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
(3) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the common seal of the Commission appearing on a document and shall presume that the document was duly sealed.
8 Constitution of Commission
(1) The Commission shall consist of:
(a) a President; and
(b) a Human Rights Commissioner; and
(c) the Race Discrimination Commissioner; and
(ca) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
(d) the Sex Discrimination Commissioner; and
(e) the Age Discrimination Commissioner; and
(f) the Disability Discrimination Commissioner; and
(g) the National Children’s Commissioner.
(2) The members must co‑operate with each other to achieve common objectives, where practicable.
(3) Subsection (2) does not affect the operation of section 44 (which deals with meetings of the Commission).
(6) The functions of the Commission under paragraphs 11(1)(aa), 11(1)(ab), 11(1)(f), 31(b), 35A(d) and 35L(1)(a) and the functions of the Commission under paragraphs 11(1)(p), 31(k), 35A(f) and 35L(1)(b), to the extent that they relate to the performance of the first‑mentioned functions, shall be performed by the President, and a reference in this Act to the Commission or to a member of the Commission shall, in relation to the performance of any of those functions, be read as a reference to the President.
(6A) The powers of the Commission under sections 20A, 32A and 35Q must be exercised by the President, and a reference in this Act to the Commission or to a member of the Commission must, in relation to the exercise of any of those powers, be read as a reference to the President.
(7) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of a vacancy in the office of President, Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner, Age Discrimination Commissioner, Disability Discrimination Commissioner or National Children’s Commissioner.
8A The President
(1) The President is to be appointed by the Governor‑General as a full‑time member or a part‑time member.
(1A) A person must not be appointed under subsection (1) as the President unless the Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or experience; and
(b) the selection of the person for the appointment is the result of a process that:
(i) was merit‑based; and
(ii) included public advertising of the position.
(1B) Paragraph (1A)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the President under a previous appointment under subsection (1).
(2) The President is the senior member of the Commission.
(3) The President is responsible for managing the administrative affairs of the Commission.
(4) For the purposes of the Public Governance, Performance and Accountability Act 2013, the President is the accountable authority of the Commission.
(5) The President has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
8B The Human Rights Commissioner
(1) The Human Rights Commissioner is to be appointed by the Governor‑General as a full‑time member.
(2) A person must not be appointed under subsection (1) as the Human Rights Commissioner unless the Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or experience; and
(b) the selection of the person for the appointment is the result of a process that:
(i) was merit‑based; and
(ii) included public advertising of the position.
(3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Human Rights Commissioner under a previous appointment under subsection (1).
9 Arrangement for appointment of the holder of a judicial office of a State
(1) The Governor‑General may, for the purpose of appointing to the Commission a person who is the holder of a judicial office of a State, enter into such arrangement with the Governor of that State as is necessary to secure that person’s services.
(2) An arrangement under subsection (1) may provide for the Commonwealth to reimburse a State with respect to the services of the person to whom the arrangement relates.
10 Appointment of Judge as member not to affect tenure etc.
(1) The appointment of the holder of a judicial office as a member, or service by the holder of a judicial office as a member, does not affect the person’s tenure of that judicial office or the person’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of that judicial office and, for all purposes, the person’s service as a member shall be taken to be service as the holder of that judicial office.
(2) In this section, judicial office means:
(a) an office of Judge of a court created by the Parliament; or
(b) an office the holder of which has, by virtue of holding that office, the same status as a Judge of a court created by the Parliament.
Division 2—Duties, functions and powers of Commission
10A Duties of Commission
(1) It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed:
(a) with regard for:
(i) the indivisibility and universality of human rights; and
(ii) the principle that every person is free and equal in dignity and rights; and
(b) efficiently and with the greatest possible benefit to the people of Australia.
(2) Nothing in this section imposes a duty on the Commission that is enforceable by proceedings in a court.
11 Functions of Commission
(1) The functions of the Commission are:
(a) such functions as are conferred on the Commission by the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 or any other enactment; and
(aa) to inquire into, and attempt to conciliate, complaints of unlawful discrimination; and
(ab) to deal with complaints lodged under Part IIC; and
(b) such functions as are to be performed by the Commission pursuant to an arrangement in force under section 16; and
(c) such functions as are expressed to be conferred on the Commission by any State enactment, being functions in relation to which the Minister has made a declaration under section 18; and
(d) the functions conferred on the Commission by section 31; and
(da) the functions conferred on the Commission by section 35A; and
(db) the functions conferred on the Commission by section 35L; and
(e) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination; and
(f) to:
(i) inquire into any act or practice that may be inconsistent with or contrary to any human right; and
(ii) if the Commission considers it appropriate to do so—endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(g) to promote an understanding and acceptance, and the public discussion, of human rights in Australia; and
(h) to undertake research and educational programs and other programs, on behalf of the Commonwealth, for the purpose of promoting human rights, and to co‑ordinate any such programs undertaken by any other persons or authorities on behalf of the Commonwealth; and
(j) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights; and
(k) on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument; and
(m) on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Covenant, the Declarations or any other relevant international instrument, and to report to the Minister the results of any such examination; and
(n) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of acts or practices of a kind in respect of which the Commission has a function under paragraph (f); and
(o) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues; and
(p) to do anything incidental or conducive to the performance of any of the preceding functions.
(2) The Commission shall not:
(a) regard an enactment or proposed enactment as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(e) by reason of a provision of the enactment or proposed enactment that is included solely for the purpose of securing adequate advancement of particular persons or groups of persons in order to enable them to enjoy or exercise human rights equally with other persons; or
(b) regard an act or practice as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(f) where the act or practice is done or engaged in solely for the purpose referred to in paragraph (a) of this subsection.
(3) Notwithstanding paragraphs (1)(a), (d) and (f), the functions of the Commission do not include inquiring into an act or practice of an intelligence agency, and, where a complaint is made to the Commission alleging that an act or practice of such an agency is inconsistent with or contrary to any human right, constitutes discrimination, or is unlawful under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004, the Commission shall refer the complaint to the Inspector‑General of Intelligence and Security.
Note: Both the Commission and the Inspector‑General of Intelligence and Security have functions in relation to ACIC and the Australian Federal Police. The Commission and the Inspector‑General can transfer matters between each other and share information in relation to actions taken by any of those agencies (see subsection 20(4C), section 46PZ and subsection 49(4C) of this Act, and Part IIIA of the Inspector‑General of Intelligence and Security Act 1986).
(3A) Notwithstanding paragraph (1)(da), the functions of the Commission do not include inquiring into an intelligence agency’s compliance with the positive duty in relation to sex discrimination.
(3B) If the President reasonably suspects that an intelligence agency is not complying with the positive duty in relation to sex discrimination, the President must refer the matter to the Inspector‑General of Intelligence and Security.
(3C) Notwithstanding paragraph (1)(db), the functions of the Commission do not include inquiring into a matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination of an intelligence agency.
(4) A reference in any of subsections (3) to (3C) to an intelligence agency is a reference to the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Office of National Intelligence, the Australian Signals Directorate, that part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department) or that part of the Defence Department known as the Defence Intelligence Organisation.
13 Powers of Commission
The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.
14 Form of examinations or inquiries to be at discretion of Commission etc.
(1) For the purpose of the performance of its functions, the Commission may make an examination or hold an inquiry in such manner as it thinks fit and, in informing itself in the course of an examination or inquiry, is not bound by the rules of evidence.
(2) Where the Commission considers that the preservation of the anonymity of a person:
(a) who has made a complaint to the Commission; or
(b) who:
(i) has furnished or proposes to furnish information; or
(ii) has produced or proposes to produce a document; or
(iii) has given or proposes to give evidence; or
(iv) has made or proposes to make a submission;
to the Commission or to a person acting for or on behalf of the Commission;
is necessary to protect the security of employment, the privacy or any human right of the person, the Commission may give directions prohibiting the disclosure of the identity of the person.
(3) The Commission may direct that:
(a) any evidence given before the Commission or any information given to the Commission; or
(b) the contents of any document produced to the Commission;
shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies.
(4) Where the Commission has given a direction under subsection (3) in relation to the publication of any evidence or information or of the contents of a document, the direction does not prevent a person from communicating to another person a matter contained in the evidence, information or document if the first‑mentioned person has knowledge of the matter otherwise than by reason of the evidence or information having been given or the document having been produced to the Commission.
(5) In deciding whether or not to give a direction under subsection (3), the Commission shall have regard to the need to prevent such of the following as are relevant to the circumstances:
(a) prejudice to the security, defence or international relations of Australia;
(b) prejudice to relations between the Commonwealth Government and the Government of a State or between the Government of a State and the Government of another State;
(c) the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State;
(d) the disclosure of deliberations or advice of the Federal Executive Council or the Executive Council of a State;
(e) the disclosure, or the ascertaining by a person, of the existence or identity of a confidential source of information in relation to the enforcement of the criminal law;
(f) the endangering of the life or physical safety of any person;
(g) prejudice to the proper enforcement of the law or the protection of public safety;
(h) the disclosure of information the disclosure of which is prohibited, absolutely or subject to qualifications, by or under another enactment;
(j) the unreasonable disclosure of the personal affairs of any person;
(k) the unreasonable disclosure of confidential commercial information.
(6) In having regard to the matters mentioned in paragraphs (5)(a) to (k), inclusive, the Commission shall try to achieve an appropriate balance between the need to have regard to those matters and the desirability of ensuring that interested persons are sufficiently informed of the results of the Commission’s examination or inquiry.
(7) A person shall not contravene a direction given by the Commission under subsection (2) or (3) that is applicable to the person.
Penalty: 10 penalty units.
(7A) Subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) In subsection (1), function does not include a function conferred on the Commission by the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004.
15 Commission may engage in consultations
For the purposes of the performance of its functions, the Commission may work with and consult appropriate persons, governmental organisations and non‑governmental organisations.
16 Inter‑governmental arrangements
(1) The Minister may make an arrangement with a Minister of a State for or in relation to:
(a) the performance on a joint basis of any functions of the Commission;
(b) the performance by that State or by an instrumentality of that State on behalf of the Commonwealth of any functions of the Commission; or
(c) the performance by the Commission of functions on behalf of that State relating to human rights or to discrimination in employment or occupation.
(2) An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Minister of the State with whom the arrangement is made think necessary.
(2A) An act done by or in relation to a State, or an instrumentality of a State, acting (whether on a joint basis or otherwise) under an arrangement made under this section shall be deemed, for the purposes of this Act, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004, to have been done by, or in relation to, the President.
(3) The Minister may arrange with the Minister of a State with whom an arrangement is in force under this section for the variation or revocation of the arrangement.
(4) An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing, and a copy of each instrument by which an arrangement under this section is made, varied or revoked shall be published in the Gazette.
18 Declarations by Minister
Where the Minister is satisfied that a function expressed to be conferred on the Commission by a State enactment could conveniently be performed by the Commission, the Minister may, by notice in writing published in the Gazette, so declare.
19 Delegation
(1) The Commission may, by writing under its common seal, delegate to a member of the Commission, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under this Act.
(2) A member may, by writing signed by the member, delegate to:
(aa) a member of the Commission; or
(a) a member of the staff of the Commission; or
(b) any other person or body of persons;
approved by the Commission, all or any of the powers exercisable by the member under this Act.
(2A) Subsection (2) does not allow the President to delegate to another member of the Commission any of the President’s powers under Part IIB or IIC.
(2B) Subsection (2) does not allow the President to delegate any of the President’s powers relating to:
(a) functions of the Commission under paragraphs 11(1)(f) and 11(1)(p) that are to be performed by the President because of subsection 8(6); or
(b) functions of the Commission under paragraphs 31(b) and 31(k) that are to be performed by the President because of subsection 8(6);
to a member of the Commission other than the Human Rights Commissioner.
(2BA) Subsection (2) does not allow the President to delegate a power that can be exercised by the President because of subsection 8(6A).
(2C) The requirement in subsection (2) for approval by the Commission does not apply to a delegation by the President.
(2D) Subsection (2) does not allow the President to delegate a power under section 35F, 35G or 35J to a person other than a member of the staff of the Commission who is:
(a) an SES employee; or
(b) an acting SES employee; or
(c) classified as Executive Level 2 or equivalent; or
(d) acting in a position usually occupied by a member of the staff of the Commission who is so classified.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
(5) Subject to any provision in the instrument of delegation, a person to whom a power of the Commission has been delegated under subsection (1) may, for the purposes of the exercise of that power, exercise any power conferred on a member of the Commission by this Act.
(6) In subsection (1), power does not include a power conferred on the Commission by the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004.
(7) In this section, unless the contrary intention appears, member means a member of the Commission.
Division 3—Functions relating to human rights
19A Division applies to victimisation offences
In this Division, a reference to an act or practice that is inconsistent with or contrary to any human right includes a reference to an act that is an offence under subsection 26(2).
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.
20A Reports to the Minister
If:
(a) the Commission has inquired into an act or practice that may be inconsistent with or contrary to any human right; and
(b) the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right;
the Commission may report to the Minister in relation to the inquiry.
21 Power to obtain information and documents
(1) Where the Commission has reason to believe that a person is capable of giving information or producing documents relevant to a matter under examination or inquiry under this Division, a member may, by notice in writing served on that person, require that person at such place, and within such period or on such date and at such time, as are specified in the notice:
(a) to give to the Commission, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or
(b) to produce to the Commission any such documents.
(2) Where:
(a) a person is required by a notice under subsection (1) to give information or produce a document to the Commission; and
(b) the information or document originated with, or has been received from, an intelligence agency;
the person shall forthwith notify that agency of the making of the requirement.
(3) A reference in subsection (2) to an intelligence agency is a reference to the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Australian Signals Directorate, the Office of National Intelligence, or the Australian Geospatial‑Intelligence Organisation or the Defence Intelligence Organisation of the Defence Department.
(4) Where documents are produced to the Commission in accordance with a requirement under subsection (1), the Commission:
(a) may take possession of, and may make copies of, or take extracts from, the documents;
(b) may retain possession of the documents for such period as is necessary for the purposes of the examination or inquiry to which the documents relate; and
(c) during that period shall permit a person who would be entitled to inspect any one or more of the documents if they were not in the possession of the Commission to inspect at all reasonable times such of the documents as that person would be so entitled to inspect.
(5) Where the Commission has reason to believe that a person is capable of giving information relevant to a matter under inquiry under this Division, a member may, by notice in writing served on the person, require the person to attend before the member, on such date and at such time and place as are specified in the notice, to answer questions relevant to the matter under inquiry.
(6) A person who attends at a place pursuant to a requirement made of the person under subsection (1) or (5) is entitled to be paid by the Commonwealth a reasonable sum for the person’s attendance at that place.
22 Power to examine witnesses
(1) A member may administer an oath or affirmation to a person required to attend before the member pursuant to section 21 and may examine the person on oath or affirmation.
(2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.
23 Failure to comply with requirement
(1) A person shall not refuse or fail:
(a) to be sworn or make an affirmation; or
(b) to give information or produce a document;
when so required under this Act.
Penalty: 10 penalty units.
(2) A person commits an offence if:
(a) the person has been served with a notice under subsection 21(5); and
(b) the person:
(i) refuses or fails to comply with the notice; or
(ii) when attending before a member in compliance with the notice, refuses or fails to answer a question that is required by the member to be answered.
Penalty: 10 penalty units.
(2A) Subsections (1) and (2) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) Without limiting the generality of the expression reasonable excuse in this section, it is hereby declared for the avoidance of doubt that it is a reasonable excuse for a person to refuse or fail to furnish information, produce a document or answer a question when required to do so under this Act, that the information, the production of the document or the answer to a question might tend to incriminate that person.
24 Disclosure of information or contents of documents
(1) Where the Attorney‑General furnishes to the Commission a certificate certifying that the giving to the Commission, or to a person acting for or on behalf of the Commission, of information concerning a specified matter (including the giving of information in answer to a question) or the production to the Commission, or to a person acting for or on behalf of the Commission, of a specified document would be contrary to the public interest:
(a) by reason that it would prejudice the security, defence or international relations of Australia; or
(b) by reason that it would involve the disclosure of communications between a Minister of the Commonwealth and a Minister of a State, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State; or
(c) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or
(d) by reason that it would involve the disclosure of deliberations or advice of the Executive Council; or
(e) by reason that it would prejudice the conduct of an investigation or inquiry into crime or criminal activity that is currently being pursued or would prejudice the fair trial of any person; or
(f) by reason that it would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement of the criminal law; or
(g) by reason that it would prejudice the effectiveness of the operational methods or investigative practices or techniques of agencies responsible for the enforcement of the criminal law; or
(h) by reason that it would endanger the life or physical safety of any person;
neither the Commission nor any other person is entitled to require a person to give any information concerning the matter or to produce the document.
(1A) In relation to the performance of functions by the Aboriginal and Torres Strait Islander Social Justice Commissioner under Part IIA, subsection (1) (other than paragraphs (1)(a) and (b)) has effect in relation to a certificate given by the Attorney‑General of a State or Territory in the same way as it has effect in relation to a certificate given by the Attorney‑General of the Commonwealth. For the purposes of this additional effect, references to the Cabinet, a Committee of the Cabinet or the Executive Council are to be treated as references to the corresponding body or committee of the State or Territory concerned.
(2) Without limiting the operation of subsection (1), where the Attorney‑General furnishes to the Commission a certificate certifying that the giving to the Commission, or to a person acting for or on behalf of the Commission, of information as to the existence or non‑existence of information concerning a specified matter (including the giving of information in answer to a question) or as to the existence or non‑existence of any one or more documents required to be produced to the Commission, or to a person acting for or on behalf of the Commission, would be contrary to the public interest:
(a) by reason that it would prejudice the security, defence or international relations of Australia; or
(b) by reason that it would prejudice the proper performance of the functions of the Australian Crime Commission;
neither the Commission nor a person acting for or on behalf of the Commission is entitled, pursuant to this Act, to require a person to give any information as to the existence or non‑existence of information concerning that matter or as to the existence or non‑existence of that document or those documents.
(3) Notwithstanding the provisions of any law, a person is not excused:
(a) from giving any information, or producing a document, when required to do so pursuant to this Act; or
(b) from answering a question that the person is required to answer by a member before whom the person is attending in compliance with a notice served on the person under subsection 21(5);
on the ground that the giving of the information, the production of the document or the answering of the question:
(c) would disclose legal advice furnished to a Minister, to a person or body that acts on behalf of the Commonwealth, or to an authority of the Commonwealth;
(d) would contravene the provisions of any other Act or would be contrary to the public interest; or
(e) might make the person liable to a penalty.
(4) A person is not liable to any penalty under the provisions of any other law by reason of:
(a) giving information or producing a document when required to do so pursuant to this Act; or
(b) answering a question that the person is required to answer by a member before whom the person is attending in compliance with a notice served on the person under subsection 21(5).
26 Offences relating to administration of Act
(1) A person shall not hinder, obstruct, molest or interfere with:
(a) a member participating in an inquiry or examination under this Act; or
(b) a person acting for or on behalf of the Commission, while that person is holding an inquiry or carrying out an investigation under this Act.
Penalty: 10 penalty units.
(2) A person who:
(a) refuses to employ another person; or
(b) dismisses, or threatens to dismiss, another person from the other person’s employment; or
(c) prejudices, or threatens to prejudice, another person in the other person’s employment; or
(d) intimidates or coerces, imposes any pecuniary or other penalty upon, or takes any other disciplinary action in relation to, another person;
by reason that the other person:
(e) has made, or proposes to make, a complaint to the Commission; or
(f) has alleged, or proposes to allege, that a person has done an act or engaged in a practice that is inconsistent with or contrary to any human right; or
(g) has furnished, or proposes to furnish, any information or documents to the Commission or to a person acting for or on behalf of the Commission; or
(h) has given or proposes to give evidence before the Commission or to a person acting on behalf of the Commission;
commits an offence punishable upon conviction:
(j) in the case of a natural person—by a fine not exceeding 25 penalty units or imprisonment for a period not exceeding 3 months, or both; or
(k) in the case of a body corporate—by a fine not exceeding 100 penalty units.
(3) It is a defence to a prosecution for an offence under subsection (2) constituted by subjecting, or threatening to subject, a person to a detriment specified in paragraph (2)(a), (b), (c) or (d) on the ground that the person has alleged that another person has done an act or engaged in a practice that is inconsistent with or contrary to any human right if it is proved that the allegation was false and was not made in good faith.
Note: Sections 136.1, 137.1 and 137.2 of the Criminal Code deal with making false or misleading statements, giving false or misleading information and producing false or misleading documents.
27 Commission to give opportunity for making of submissions
Where it appears to the Commission as a result of an inquiry into an act or practice that the act or practice is inconsistent with or contrary to any human right, the Commission shall not furnish a report to the Minister in relation to the act or practice until it has given a reasonable opportunity to the person who did the act or engaged in the practice, to do, at the option of the person, either or both of the following:
(a) to appear before the Commission, whether in person or by a representative, and make oral submissions in relation to the act or practice;
(b) to make written submissions to the Commission in relation to the act or practice.
28 Nature of settlements
The Commission shall, in endeavouring to effect a settlement of a matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of human rights and the need to protect those rights.
29 Reports to contain recommendations
(1) Where, after an examination of an enactment or proposed enactment, the Commission finds that the enactment is, or the proposed enactment would be, inconsistent with or contrary to any human right, the Commission shall include in its report to the Minister relating to the results of the examination any recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that the enactment is not, or the proposed enactment would not be, inconsistent with or contrary to any human right.
(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice is inconsistent with or contrary to any human right, the Commission:
(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;
(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
(c) may include in the notice any recommendation by the Commission for either or both of the following:
(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;
(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);
(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and
(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:
(i) where the complaint was made by a person affected by the act or practice—shall serve a copy of that report on the complainant; or
(ii) if the complaint was made by another person—may serve a copy of that report on the complainant.
(3) Where:
(a) a complaint is made to the Commission in relation to an act or practice; and
(b) after an inquiry into the act or practice, the Commission finds that:
(i) the existence of the act or practice has not been established; or
(ii) the act or practice is not inconsistent with or contrary to any human right;
the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and:
(c) in a case to which subparagraph (b)(i) applies—to the person alleged to have done the act or engaged in the practice; or
(d) in a case to which subparagraph (b)(ii) applies—to the person who did the act or engaged in the practice.
(4) In setting out findings and reasons in a notice to be served or a report to be given under this section the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in subsection 14(5) and to the obligations of the Commission under subsection 14(6).
(5) Where, under subsection (4), the Commission excludes any matter from a report, the Commission shall prepare a report setting out the excluded matter and its reasons for excluding the matter and shall furnish the report to the Minister.
Division 4—Functions relating to equal opportunity in employment
30 Interpretation etc.
(1) In this Division:
act includes an act done:
(a) by or on behalf of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the act was done within a State.
practice includes a practice engaged in:
(a) by or on behalf of a State or an authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the extent to which the practice was or is engaged in within a State.
(1A) In this Division, a reference to an act or practice that constitutes discrimination includes a reference to an act that is an offence under subsection 26(2).
(2) This Division binds the Crown in right of a State.
31 Functions of Commission relating to equal opportunity
The following functions are hereby conferred on the Commission:
(a) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, have, or would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, and to report to the Minister the results of any such examination;
(b) to:
(i) inquire into any act or practice (including any systemic practice) that may constitute discrimination; and
(ii) if the Commission considers it appropriate to do so—endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry;
(c) to promote an understanding and acceptance, and the public discussion, of equality of opportunity and treatment in employment and occupation in Australia;
(d) to undertake research and educational programs and other programs, on behalf of the Commonwealth, for the purpose of promoting equality of opportunity and treatment in employment and occupation, and to co‑ordinate any such programs undertaken by any other persons or authorities on behalf of the Commonwealth;
(e) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to equality of opportunity and treatment in employment and occupation;
(f) when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Convention;
(g) on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Convention, and to report to the Minister the results of any such examination;
(h) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of acts or practices of a kind in respect of which the Commission has a function under paragraph (b);
(j) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve discrimination issues;
(k) to do anything incidental or conducive to the performance of any of the preceding functions.
32 Performance of functions relating to equal opportunity
(1) Subject to subsections (2) and (3), the Commission shall perform the functions referred to in paragraph 31(b) 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 constitutes discrimination; or
(c) it appears to the Commission to be desirable to do so.
(2) The Commission shall not inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, shall not continue to inquire into the act or practice, if the Commission is satisfied that the subject matter of the complaint is dealt with under a prescribed enactment or a prescribed State enactment.
(3) 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 does not constitute discrimination; 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 complainant; 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.
(4) The Commission must act fairly in the performance of the functions referred to in paragraph 31(b).
(5) 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.
(6) Subsections (4) and (5) do not impose a duty on the Commission that is enforceable in court.
(7) Subsection (6) does not affect a legally enforceable obligation to observe the rules of natural justice.
32A Reports to the Minister
If:
(a) the Commission has inquired into an act or practice (whether a systemic practice or otherwise) that may constitute discrimination; and
(b) the Commission is of the opinion that the act or practice constitutes discrimination;
the Commission may report to the Minister in relation to the inquiry.
33 Application of certain provisions of Division 3
Subsections 20(3), (4) and (5) and sections 21, 22, 23, 24, 26 and 27 apply in relation to the functions of the Commission set out in section 31, and in relation to the performance of those functions, as if:
(a) references in those provisions to acts or practices were references to acts or practices within the meaning of this Division;
(b) the words “is inconsistent with or contrary to any human right” were omitted from subsection 20(5) and the words “constitutes discrimination” were substituted;
(c) references in section 21 to a matter under examination or inquiry under Division 3 were references to a matter under examination or inquiry under this Division, not being an act mentioned in paragraph (a), (b), (c) or (d) of the definition of act in subsection 30(1) or a practice mentioned in paragraph (a), (b), (c) or (d) of the definition of practice in that subsection;
(d) the words “is inconsistent with or contrary to any human right” were omitted from sections 26 and 27 and the words “constitutes discrimination” were substituted; and
(e) a reference in any of those provisions to another of those provisions were a reference to that other provision as applied by this section.
34 Nature of settlements
The Commission shall, in endeavouring to effect a settlement of a matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of the right of every person to equality of opportunity and treatment in respect of employment and occupation and the need to protect that right.
35 Reports to contain recommendations
(1) Where, after an examination of an enactment or proposed enactment, the Commission finds that the enactment has, or the proposed enactment would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, the Commission shall include in its report to the Minister relating to the results of the examination any recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that the enactment does not have, or the proposed enactment would not have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission:
(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;
(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;
(c) may include in the notice any recommendation by the Commission for either or both of the following:
(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;
(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;
(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);
(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and
(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:
(i) where the complaint was made by a person affected by the act or practice—shall serve a copy of that report on the complainant; or
(ii) if the complaint was made by another person—may serve a copy of that report on the complainant.
(3) Where:
(a) a complaint is made to the Commission in relation to an act or practice; and
(b) after an inquiry into the act or practice, the Commission finds that:
(i) the existence of the act or practice has not been established; or
(ii) the act or practice does not constitute discrimination;
the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and:
(c) in a case to which subparagraph (b)(i) applies—to the person alleged to have done the act or engaged in the practice; or
(d) in a case to which subparagraph (b)(ii) applies—to the person who did the act or engaged in the practice.
(4) In setting out findings and reasons in a notice to be served or a report to be given under this section the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in subsection 14(5) and to the obligations of the Commission under subsection 14(6).
(5) Where, under subsection (4), the Commission excludes any matter from a report, the Commission shall prepare a report setting out the excluded matter and its reasons for excluding the matter and shall furnish the report to the Minister.
Division 4A—Functions relating to positive duty in relation to sex discrimination
35A Functions of Commission relating to positive duty in relation to sex discrimination
The following functions are conferred on the Commission:
(a) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for complying with the positive duty in relation to sex discrimination;
(b) to promote an understanding and acceptance, and the public discussion, of the positive duty in relation to sex discrimination;
(c) to undertake research and educational programs in relation to the positive duty in relation to sex discrimination;
(d) to inquire into a person’s compliance with the positive duty in relation to sex discrimination;
(e) to ensure compliance with the positive duty in relation to sex discrimination;
(f) to do anything incidental or conducive to the performance of any of the preceding functions.
Note: The positive duty in relation to sex discrimination is section 47C of the Sex Discrimination Act 1984.
35AA Performance of functions relating to positive duty in relation to sex discrimination
In performing its functions under section 35A, the Commission must have regard to:
(a) the need for guidelines and other materials to be available in multiple languages; and
(b) the cultural diversity of Australian workplaces.
35B Performance of inquiry function relating to positive duty in relation to sex discrimination
(1) The Commission may inquire into a person’s compliance with the positive duty in relation to sex discrimination if the Commission reasonably suspects that the person is not complying.
(2) The Commission must act fairly in the performance of the function referred to in paragraph 35A(d).
(3) Subsection (2) does not impose a duty on the Commission that is enforceable in court.
(4) Subsection (3) does not affect a legally enforceable obligation to observe the rules of natural justice.
35C Commission to notify person and give opportunity for making of submissions
(1) As soon as practicable after commencing an inquiry into a person’s compliance with the positive duty in relation to sex discrimination, the Commission must give the person a written notice stating the grounds on which the Commission commenced the inquiry.
(2) The Commission must not find that a person is not complying with the positive duty in relation to sex discrimination unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:
(a) to appear before the Commission, whether in person or by a representative, and make oral submissions in relation to the person’s compliance;
(b) to make written submissions to the Commission in relation to the person’s compliance.
35D Application of certain provisions of Division 3
Sections 21, 22, 23 and 24 and subsection 26(1) apply in relation to the functions of the Commission set out in section 35A, and in relation to the performance of those functions, as if:
(a) references in section 21 to a matter under examination or inquiry under Division 3 were references to a matter under inquiry under this Division; and
(b) a reference in any of those provisions to another of those provisions were a reference to that other provision as applied by this section.
35E Notification of findings and recommendations
If, as a result of an inquiry into a person’s compliance with the positive duty in relation to sex discrimination, the Commission finds that the person is not complying, the Commission:
(a) must notify the person in writing of its finding and the reasons for the finding; and
(b) may notify the person of any recommendations by the Commission for preventing a repetition or continuation of the failure to comply.
35F Giving of compliance notice
(1) If, as a result of an inquiry into a person’s compliance with the positive duty in relation to sex discrimination, the Commission finds that the person is not complying, the President may give the person a written notice.
(2) The notice must:
(a) set out the name of the person to whom the notice is given; and
(b) set out brief details of the failure to comply; and
(c) specify action that the person must take, or refrain from taking, in order to address the failure; and
(d) specify a reasonable period (starting at least 21 days after the day the notice is given) within which the person must take, or refrain from taking, the specified action; and
(e) if the President considers it appropriate—specify a reasonable period within which the person must provide the Commission with evidence that the person has taken, or refrained from taking, the specified action; and
(f) set out any other matters prescribed by the regulations for the purposes of this paragraph.
(3) However, if the President has accepted an undertaking from a person under Part 6 of the Regulatory Powers Act in relation to the positive duty in relation to sex discrimination, a notice must not be given to the person under subsection (1) unless the undertaking is withdrawn, cancelled or expired.
35G Reconsideration of compliance notice
President must reconsider compliance notice if requested
(1) A person to whom a compliance notice is given may request the President to reconsider the compliance notice.
(2) The request must:
(a) be made in writing; and
(b) set out the reasons for the request; and
(c) be given to the President within 21 days after the day the compliance notice is given to the person.
(3) If requested, the President must reconsider the compliance notice.
President may reconsider compliance notice on own initiative
(4) The President may reconsider a compliance notice given to a person without receiving a request if satisfied there is sufficient reason to do so.
Reconsideration
(5) The President must act expeditiously in reconsidering a compliance notice.
(6) After reconsidering a compliance notice, the President must:
(a) affirm the compliance notice; or
(b) vary the compliance notice; or
(c) revoke the compliance notice.
(7) The President must give written notice of a decision under subsection (6) to the person to whom the compliance notice was given, setting out the reasons for the decision.
Decisions by delegates
(8) If the President’s functions under this section are performed by a delegate of the President, the delegate who reconsiders a compliance notice:
(a) must not have been involved in giving the compliance notice; and
(b) must hold a position, or perform duties, of at least the same level as the person who gave the compliance notice.
35H Review of compliance notice
(1) A person who has been given a compliance notice may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for a review of the notice on either or both of the following grounds:
(a) the person has not failed to comply as set out in the notice;
(b) the notice does not comply with subsection 35F(2) or (3).
(1A) The application must be made within:
(a) if the compliance notice has been reconsidered under section 35G—21 days after the person was given a notice of a decision under subsection 35G(6) relating to the compliance notice; or
(b) otherwise—21 days after the day the compliance notice was given to the person.
(2) At any time after the application has been made, the court concerned may stay the operation of the notice on the terms and conditions that the court considers appropriate.
(3) The court concerned may confirm, vary or cancel the notice after reviewing it.
35J Enforcement of compliance notice
(1) The President may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order under subsection (2) if:
(a) a person has been given a compliance notice; and
(b) the notice has not been revoked or cancelled; and
(c) the notice is not being reconsidered under section 35G or reviewed under section 35H; and
(d) the President considers that the person has not complied with the notice.
(2) If the court concerned is satisfied that the person has not complied with the notice, the court may make any or all of the following orders:
(a) an order directing the person to comply with the notice;
(b) any other order that the court considers appropriate.
35K Enforceable undertakings
Enforceable provision
(1) Section 47C of the Sex Discrimination Act 1984 is enforceable under Part 6 of the Regulatory Powers Act.
Note 1: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Note 2: Section 47C of the Sex Discrimination Act 1984 is the positive duty in relation to sex discrimination.
Authorised persons
(2) For the purposes of Part 6 of the Regulatory Powers Act, the President is an authorised person in relation to section 47C of the Sex Discrimination Act 1984.
(3) The President may, in writing, delegate the President’s powers and functions under Part 6 of the Regulatory Powers Act in relation to section 47C of the Sex Discrimination Act 1984 to a member of the staff of the Commission who is:
(a) an SES employee; or
(b) an acting SES employee; or
(c) classified as Executive Level 2 or equivalent; or
(d) acting in a position usually occupied by a member of the staff of the Commission who is so classified.
Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.
Relevant court
(4) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to section 47C of the Sex Discrimination Act 1984:
(a) the Federal Court;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Enforceable undertaking may be published on the Commission’s website
(5) The President may publish on the Commission’s website an undertaking given in relation to section 47C of the Sex Discrimination Act 1984.
Extension to external Territories
(6) Part 6 of the Regulatory Powers Act, as that Part applies in relation to section 47C of the Sex Discrimination Act 1984, extends to every external Territory.
Division 4B—Functions relating to systemic discrimination
35L Functions of Commission relating to systemic discrimination
(1) The following functions are conferred on the Commission:
(a) to inquire into any matter that may relate to systemic unlawful discrimination or suspected systemic unlawful discrimination;
(b) to do anything incidental or conducive to the performance of any of the preceding functions.
(2) In this Act:
systemic unlawful discrimination means unlawful discrimination that:
(a) affects a class or group of persons; and
(b) is continuous, repetitive or forms a pattern.
35M Performance of functions relating to systemic discrimination
The Commission may perform the functions referred to in paragraph 35L(1)(a) when:
(a) the Commission is requested to do so by the Minister; or
(b) it appears to the Commission to be desirable to do so.
35N Application of certain provisions of Division 3
Sections 21, 22, 23 and 24 and subsection 26(1) apply in relation to the functions of the Commission set out in section 35L, and in relation to the performance of those functions, as if:
(a) references in section 21 to a matter under examination or inquiry under Division 3 were references to a matter under inquiry under this Division; and
(b) a reference in any of those provisions to another of those provisions were a reference to that other provision as applied by this section.
35P Commission to give opportunity for making of submissions
In an inquiry into a matter under this Division, the Commission must not make an adverse finding about a person unless it has given a reasonable opportunity to the person, to do, at the option of the person, either or both of the following:
(a) to appear before the Commission, whether in person or by a representative, and make oral submissions in relation to the matter;
(b) to make written submissions to the Commission in relation to the matter.
35Q Reports
(1) If the Commission has undertaken an inquiry into a matter under this Division, the Commission may do either or both of the following:
(a) report to the Minister in relation to the inquiry;
(b) publish a report in relation to the inquiry.
(2) The Commission may include in its report any recommendations by the Commission for addressing the matter.
Division 5—Administrative provisions
36 Acting President and Human Rights Commissioner
(2) The Minister may appoint a person to act as President:
(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of President.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(3) The Minister may appoint a person to act as Human Rights Commissioner:
(a) during a vacancy in the office of Human Rights Commissioner, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Human Rights Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Human Rights Commissioner.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(9) At any time when a person who is not a member of the Commission is acting as President or Human Rights Commissioner, the person shall be deemed to be a member of the Commission for the purposes of sections 21, 22, 23, 24 and 26 (including those sections as applied by section 33, 35D or 35N) and sections 48 and 49.
37 Terms and conditions of appointment
(1) Subject to subsection (2) or (3), an appointed member holds office for such period as is specified in the instrument of the member’s appointment, but is eligible for re‑appointment.
(2) A person must not be appointed as the President under section 8A for a period if the sum of the following exceeds 7 years:
(a) that period;
(b) any periods of previous appointment of the person as the President under that section.
(3) A person must not be appointed as the Human Rights Commissioner under section 8B for a period if the sum of the following exceeds 7 years:
(a) that period;
(b) any periods of previous appointment of the person as the Human Rights Commissioner under that section.
(4) An appointed member, other than a member who is a Judge, holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.
38 Remuneration and allowances
(1) Subject to this section, an appointed member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, an appointed member shall be paid such remuneration as is prescribed.
(2) An appointed member shall be paid such allowances as are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
(4) If a person who is a Judge is appointed as a member, the person is not, while receiving salary or annual allowance as a Judge, entitled to remuneration under this Act.
39 Leave of absence
(1) A person appointed as a full‑time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(1A) The Minister may grant a person appointed as a full‑time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
(2) The Minister may grant to a person appointed as a part‑time member leave of absence from a meeting of the Commission.
40 Resignation
An appointed member may resign from the office of member by writing signed by the member and delivered to the Governor‑General.
41 Termination of appointment
(1) The Governor‑General may terminate the appointment of a member by reason of misbehaviour or physical or mental incapacity.
(2) If:
(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;
(b) a full‑time member engages, except with the approval of the Minister, in paid employment outside the duties of the office of member;
(c) a full‑time member is absent from duty, except on leave of absence, for 14 consecutive days, or for 28 days in any period of 12 months;
(d) a part‑time member is absent, except on leave granted by the Minister in accordance with subsection 39(2), from 3 consecutive meetings of the Commission; or
(e) a member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section;
the Governor‑General shall terminate the appointment of that member.
(3) In subsections (1) and (2), member means an appointed member but does not include a member who is a Judge.
(4) If an appointed member who is a Judge ceases to be a Judge, the Governor‑General may terminate the appointment of the member.
43 Staff
(1) The staff necessary to assist the Commission shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the President and the APS employees assisting the President together constitute a Statutory Agency; and
(b) the President is the Head of that Statutory Agency.
43A Commission may make administrative services available to the Information Commissioner
The Commission may make administrative services available to the Information Commissioner for the purpose of assisting the Information Commissioner in the performance of his or her functions under the Australian Information Commissioner Act 2010 or any other Act.
44 Meetings of the Commission
(1) The Minister or the President may, at any time, convene a meeting of the Commission.
(2) The President shall convene such meetings of the Commission as, in the President’s opinion, are necessary for the efficient performance of its functions.
(3) At a meeting of the Commission a quorum is constituted by a number of members that is not less than one‑half of the number of members for the time being holding office under section 8.
(4) The President shall preside at all meetings of the Commission at which the President is present.
(5) If the President is not present at a meeting of the Commission, the members present are to elect one of their number to preside at the meeting.
(6) Questions arising at a meeting of the Commission shall be determined by a majority of the votes of the members present and voting.
(7) The person presiding at a meeting of the Commission has a deliberative vote, and, in the event of an equality of votes, also has a casting vote.
(8) The Commission may regulate the conduct of proceedings at its meetings as it thinks fit and shall cause minutes of those proceedings to be kept.
44A Money payable to the Commission
(1) There is payable to the Commission such money as is appropriated by the Parliament for the purposes of the Commission.
(2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Commission.
(3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
(4) In this section:
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
44B Application of money by the Commission
(1) The money of the Commission is to be applied only:
(a) in payment or discharge of the costs, expenses and other obligations incurred by the Commission in the performance of its functions and the exercise of its powers; and
(b) in payment of any remuneration or allowances payable under this Act.
(2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Commission.
44C Taxation
The Commission is not subject to taxation under a law of the Commonwealth or of a State or Territory.
Note: However, the Commission may be subject to taxation under certain laws (see, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).
45 Annual report
The annual report prepared by the President and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must cover the Commission’s operations during the period under:
(a) this Act or any other enactment; or
(b) any State enactment.
46 Reports to be tabled in Parliament
The Minister shall cause a copy of every report furnished to the Minister by the Commission under this Part (other than section 20A, subsection 29(5), section 32A or subsection 35Q(1)) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.
Division 6—Corporate plan
46AA Corporate plan
In performing its duties and functions, the Commission must take account of the corporate plan prepared by the President under section 35 of the Public Governance, Performance and Accountability Act 2013 that is in force.
Part IIA—Aboriginal and Torres Strait Islander Social Justice Commissioner
Division 1—Establishment and functions
46A Interpretation
In this Part:
Commissioner means the Aboriginal and Torres Strait Islander Social Justice Commissioner.
human rights means:
(a) the rights and freedoms recognised by the International Convention on the Elimination of All Forms of Racial Discrimination, a copy of which is set out in the Schedule to the Racial Discrimination Act 1975; and
(b) the rights and freedoms recognised by the Covenant; and
(c) the rights and freedoms declared by the Declarations or recognised or declared by any relevant international instrument.
46B Aboriginal and Torres Strait Islander Social Justice Commissioner
(1) There is to be an Aboriginal and Torres Strait Islander Social Justice Commissioner, who is to be appointed by the Governor‑General.
(2) A person must not be appointed under subsection (1) as the Aboriginal and Torres Strait Islander Social Justice Commissioner unless the Minister is satisfied that:
(a) the person has significant experience in community life of Aboriginal persons or Torres Strait Islanders; and
(b) the selection of the person for the appointment is the result of a process that:
(i) was merit‑based; and
(ii) included public advertising of the position.
(3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Aboriginal and Torres Strait Islander Social Justice Commissioner under a previous appointment under subsection (1).
46C Functions of the Commission that are to be performed by the Commissioner etc.
(1) The following functions are conferred on the Commission:
(b) to promote discussion and awareness of human rights in relation to Aboriginal persons and Torres Strait Islanders;
(c) to undertake research and educational programs, and other programs, for the purpose of promoting respect for the human rights of Aboriginal persons and Torres Strait Islanders and promoting the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders;
(d) to examine enactments, and proposed enactments, for the purpose of ascertaining whether they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders, and to report to the Minister the results of any such examination.
Note: Functions are also conferred on the Commission under section 209 of the Native Title Act 1993.
(2) The functions of the Commission under subsection (1) are to be performed by the Commissioner on behalf of the Commission.
(2A) The Commissioner may submit reports to the Minister regarding the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders.
(2B) The Commissioner may submit reports to the Minister regarding:
(a) the operation of the Native Title Act 1993; and
(b) the effect of that Act on the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders.
(2C) A report under subsection (2A) or (2B) may include recommendations as to the action that should be taken to ensure the enjoyment and exercise of human rights by Aboriginal persons and Torres Strait Islanders.
(3) In the performance of functions, or the exercise of powers, under this section, the Commissioner may consult any of the following:
(a) organisations established by Aboriginal or Torres Strait Islander communities;
(b) organisations of indigenous peoples in other countries;
(c) international organisations and agencies;
(d) such other organisations, agencies or persons as the Commissioner considers appropriate.
(4) In the performance of functions, or the exercise of powers, under this section, the Commissioner must, as appropriate, have regard to:
(a) the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child; and
(b) such other instruments relating to human rights as the Commissioner considers relevant.
Division 2—Administrative provisions
46D Terms and conditions of appointment
(1) Subject to this Division, the Commissioner holds office for such period as is specified in the instrument of appointment, but is eligible for re‑appointment.
(1A) A person must not be appointed as the Aboriginal and Torres Strait Islander Social Justice Commissioner under section 46B for a period if the sum of the following exceeds 7 years:
(a) that period;
(b) any periods of previous appointment of the person as the Aboriginal and Torres Strait Islander Social Justice Commissioner under that section.
(2) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.
46E Remuneration
(1) The Commissioner is to be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration by the Remuneration Tribunal is in operation, the Commissioner is to be paid such remuneration as is prescribed.
(2) The Commissioner is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
46F Leave of absence
(1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
46G Outside employment
The Commissioner must not, except with the approval of the Minister, engage in paid employment outside the duties of the office of Commissioner.
46H Resignation
The Commissioner may resign from the office of Commissioner by writing given to the Governor‑General.
46I Termination of appointment
(1) The Governor‑General may terminate the appointment of the Commissioner because of:
(a) misbehaviour; or
(b) a disability that makes the Commissioner incapable of performing the inherent requirements of the office.
(2) The Governor‑General must terminate the appointment of the Commissioner if the Commissioner:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
(b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or
(c) engages in paid employment outside the duties of the office of Commissioner otherwise than with the approval of the Minister.
46J Acting Commissioner
The Minister may appoint a person to act as Commissioner:
(a) during a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Commissioner.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Division 3—Miscellaneous
46K Commissioner may obtain information from government agencies
(1) If the Commissioner has reason to believe that a government agency has information or a document relevant to the performance by the Commissioner of functions under this Part, the Commissioner may give a written notice to the agency requiring the agency:
(a) to give the information to the Commissioner in writing signed by or on behalf of the agency; or
(b) to produce the document to the Commissioner.
(2) The notice must state:
(a) the place at which the information or document is to be given or produced to the Commissioner; and
(b) the time at which, or period within which, the information or document is to be given or produced.
(3) A government agency must not, in response to a requirement under this section:
(a) give information in a manner that would reveal the identity of a particular individual; or
(b) produce a document that reveals the identity of a particular individual;
unless the individual has consented to the giving of the information or the production of the document.
(4) If:
(a) subsection (3) would prevent a government agency from complying with a requirement under this section to produce a document; and
(b) the agency is able to provide a copy of the document that has had deleted from it the information that would reveal the identity of the individual concerned;
the agency must comply with the requirement by producing a copy with that information deleted.
(5) In this section:
government agency means:
(a) an authority of the Commonwealth, or of a State or Territory; or
(b) a person who performs the functions of, or performs functions within, an authority of the Commonwealth, or of a State or Territory.
46L Commissioner must give information to the Commission
The Commissioner must give to the Commission such information as the Commission from time to time requires relating to the operations of the Commissioner under this Part.
46M Minister must table etc. report of Commissioner
The Minister must cause a copy of each report received by the Minister under subsection 46C(2A) or (2B):
(a) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister; and
(b) to be sent to the Attorney‑General of each State and Territory within 7 days after the report is first laid before either House of the Parliament under paragraph (a).
Part IIAA—National Children’s Commissioner
Division 1—Establishment and functions
46MA National Children’s Commissioner
There is to be a National Children’s Commissioner.
46MB Functions of Commission that are to be performed by the National Children’s Commissioner etc.
(1) The following functions are conferred on the Commission:
(b) to promote discussion and awareness of matters relating to the human rights of children in Australia;
(c) to undertake research, or educational or other programs, for the purpose of promoting respect for the human rights of children in Australia, and promoting the enjoyment and exercise of human rights by children in Australia;
(d) to examine existing and proposed Commonwealth enactments for the purpose of ascertaining whether they recognise and protect the human rights of children in Australia, and to report to the Minister the results of any such examination.
(2) The functions of the Commission under this section are to be performed by the National Children’s Commissioner on behalf of the Commission.
(3) The National Children’s Commissioner may submit reports to the Minister that deal with such matters, relating to the enjoyment and exercise of human rights by children in Australia, as the National Children’s Commissioner considers appropriate.
(3A) A report under subsection (3) may include recommendations that the National Children’s Commissioner considers appropriate as to the action that should be taken to ensure the enjoyment and exercise of human rights by children in Australia.
(4) In performing functions, or exercising powers, under this section, the National Children’s Commissioner may give particular attention to children who are at risk or vulnerable.
(5) In performing functions, or exercising powers, under this section, the National Children’s Commissioner may consult any of the following:
(a) children;
(b) Departments and authorities of the Commonwealth, and of the States and Territories;
(c) non‑governmental organisations;
(d) international organisations and agencies;
(e) such other organisations, agencies or persons as the Commissioner considers appropriate.
(6) In performing functions, or exercising powers, under this section, the National Children’s Commissioner must, as appropriate, have regard to:
(a) the Universal Declaration of Human Rights (United Nations General Assembly Resolution A/RES/217(III) A (1948); and
(b) the following, as amended and in force for Australia from time to time:
(i) the International Convention on the Elimination of all Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40);
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5);
(iii) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23);
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9);
(v) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4);
(vi) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(c) such other instruments relating to human rights as the Commissioner considers relevant.
Note 1: In 2012, the text of the Universal Declaration of Human Rights was accessible through the United Nations website (www.un.org).
Note 2: In 2012, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Division 2—Appointment
46MC Appointment of National Children’s Commissioner
(1) The National Children’s Commissioner is to be appointed by the Governor‑General by written instrument, on a full‑time basis.
(2) A person must not be appointed under subsection (1) as the National Children’s Commissioner unless the Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or experience; and
(b) the selection of the person for the appointment is the result of a process that:
(i) was merit‑based; and
(ii) included public advertising of the position.
(3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the National Children’s Commissioner under a previous appointment under subsection (1).
46MD Period of appointment
(1) The National Children’s Commissioner holds office for the period specified in the instrument of appointment.
Note: For re‑appointment, see section 33AA of the Acts Interpretation Act 1901.
(2) A person must not be appointed as the National Children’s Commissioner under section 46MC for a period if the sum of the following exceeds 7 years:
(a) that period;
(b) any periods of previous appointment of the person as the National Children’s Commissioner under that section.
46ME Acting appointment
The Minister may, by written instrument, appoint a person to act as the National Children’s Commissioner:
(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: See also sections 20, 33AB and 33A of the Acts Interpretation Act 1901.
Division 3—Terms and conditions
46MF Remuneration and allowances
(1) The National Children’s Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
(2) The National Children’s Commissioner is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
46MG Leave of absence
(1) The National Children’s Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the National Children’s Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
46MH Outside employment
The National Children’s Commissioner must not engage in paid employment outside the duties of his or her office without the approval of the Minister.
46MI Resignation
(1) The National Children’s Commissioner may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
46MJ Termination of appointment
The Governor‑General may terminate the appointment of the National Children’s Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity; or
(c) if the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of remuneration for the benefit of his or her creditors; or
(d) if the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(e) if the Commissioner engages in paid employment contrary to section 46MH.
46MK Other terms and conditions
The National Children’s Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
Division 4—Miscellaneous
46ML National Children’s Commissioner may obtain information from Commonwealth government agencies
(1) If the National Children’s Commissioner has reason to believe that a Commonwealth government agency has information or a document relevant to the performance by the Commissioner of functions under this Part, the Commissioner may give a written notice to the agency requiring the agency:
(a) to give the information to the Commissioner in writing signed by or on behalf of the agency; or
(b) to produce the document to the Commissioner.
(2) The notice must state:
(a) the place at which the information or document is to be given or produced; and
(b) the time at which, or period within which, the information or document is to be given or produced.
(3) The time or period stated under paragraph (2)(b) must be reasonable.
(4) A Commonwealth government agency must not, in response to a requirement under this section:
(a) give information in a manner that would reveal the identity of a particular individual; or
(b) produce a document that reveals the identity of a particular individual;
unless the individual has consented to the giving of the information or the production of the document.
(5) If:
(a) subsection (4) would prevent a Commonwealth government agency from complying with a requirement under this section to produce a document; and
(b) the agency is able to provide a copy of the document that has had deleted from it the information that would reveal the identity of the individual concerned;
the agency must comply with the requirement by producing a copy with that information deleted.
(6) In this section:
Commonwealth government agency means:
(a) a Department or authority of the Commonwealth; or
(b) a person who performs the functions of, or performs functions within, a Department or authority of the Commonwealth.
46MM National Children’s Commissioner must give information to the Commission
The National Children’s Commissioner must give to the Commission such information as the Commission from time to time requires relating to the operations of the Commissioner under this Part.
46MN Minister must table reports of National Children’s Commissioner
The Minister must cause a copy of each report received by the Minister under this Part to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.
Part IIB—Redress for unlawful discrimination
Division 1—Conciliation by the President
46P Lodging a complaint
(1) A written complaint may be lodged with the Commission:
(a) alleging:
(i) that one or more acts have been done; or
(ii) that one or more omissions or practices have occurred; and
(b) alleging that those acts, omissions or practices are unlawful discrimination.
Note 1: Unlawful discrimination is defined in subsection 3(1).
Note 2: Under section 46PZ, a complaint may be taken to be lodged with the Commission if all or part of a complaint is transferred from the Inspector‑General of Intelligence and Security under section 32AG of the Inspector‑General of Intelligence and Security Act 1986.
(1A) It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
(1B) The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices.
(2) The complaint may be lodged:
(a) by a person aggrieved by the alleged acts, omissions or practices:
(i) on that person’s own behalf; or
(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(b) by 2 or more persons aggrieved by the alleged acts, omissions or practices:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged acts, omissions or practices.
(3) A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.
(4) If it appears to the Commission that:
(a) a person wishes to make a complaint under subsection (1); and
(b) the person requires assistance to formulate the complaint or to reduce it to writing;
the Commission must take reasonable steps to provide appropriate assistance to the person.
46PA Amendment of complaint
(1) Any complainant may at any time amend the complaint, with the leave of the President.
(2) Subsection (1) does not, by implication, limit any other power to amend the complaint.
46PB Conditions for lodging a representative complaint
(1) A representative complaint may be lodged under section 46P only if:
(a) the class members have complaints against the same person; and
(b) all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and
(c) all the complaints give rise to a substantial common issue of law or fact.
(2) A representative complaint under section 46P must:
(a) describe or otherwise identify the class members; and
(b) specify the nature of the complaints made on behalf of the class members; and
(c) specify the nature of the relief sought.
(3) In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.
(4) A representative complaint may be lodged without the consent of class members.
46PC Additional rules applying to representative complaints
(1) A class member may, by notice in writing to the Commission, withdraw from a representative complaint at any time before the President terminates the complaint under paragraph 46PF(1)(b) or section 46PH.
(2) The President may, on application in writing by any affected person, replace any complainant with another person as complainant.
(3) The President may at any stage direct that notice of any matter be given to a class member or class members.
46PD Referral of complaint to President
If a complaint is made to the Commission under section 46P, the Commission must refer the complaint to the President.
46PE Complaints against the President, Commission or a Commissioner
(1) This section applies to a complaint if any of the respondents to the complaint is:
(a) the President; or
(b) the Commission; or
(c) a Commissioner.
(2) If any complainant makes a written request to the President for termination of the complaint, the President must terminate the complaint, if the President is satisfied that all the affected persons agree to the termination.
(3) If the President terminates the complaint under subsection (2), the President must comply with the notification requirements of subsections 46PH(2), (2A) and (3).
(4) The President cannot delegate any of his or her powers in relation to the complaint except under paragraph 19(2)(b).
46PF Inquiry by President
(1) Subject to subsections (1A) and (5), if a complaint is referred to the President under section 46PD, the President must:
(a) consider whether to inquire into the complaint, having regard to the matters referred to in section 46PH; and
(b) if the President is of the opinion that the complaint should be terminated—terminate the complaint without inquiry; and
(c) unless the President terminates the complaint under paragraph (b) or section 46PH—inquire into the complaint and attempt to conciliate the complaint.
(1A) For the purposes of paragraph (1)(a), the President may inform himself or herself of such facts and circumstances as are necessary to form the opinion referred to in paragraph (1)(b).
(1B) If the President terminates the complaint under paragraph (1)(b), the President must comply with the notification requirements of subsections 46PH(2), (2A) and (3).
(2) If the President thinks that 2 or more complaints arise out of the same or substantially the same circumstances or subject, the President may hold a single inquiry, or conduct a single conciliation, in relation to those complaints.
(3) With the leave of the President, any complainant or respondent may amend the complaint to add, as a respondent, a person who is alleged to have done the alleged acts, omissions or practices.
Note: In some cases, a person is regarded as having done acts or omissions by being treated as responsible for the acts and omissions of another person. See sections 56 and 57 of the Age Discrimination Act 2004, sections 122 and 123 of the Disability Discrimination Act 1992, sections 18A and 18E of the Racial Discrimination Act 1975 and sections 105, 106 and 107 of the Sex Discrimination Act 1984.
(4) A complaint cannot be amended after it is terminated by the President under paragraph (1)(b) or section 46PH.
(5) The President may decide not to inquire into the complaint, or, if the President has started inquiring into the complaint, may decide not to continue to inquire into the complaint, if:
(a) the President is satisfied that the person aggrieved by the alleged acts, omissions or practices does not want the President to inquire, or to continue to inquire, into the complaint; or
(b) the President is satisfied that the complaint has been settled or resolved.
(6) The President must act fairly to:
(a) the complainant or complainants; and
(b) the respondent;
in dealing with the complaint in accordance with this section.
(7) If the President has decided to inquire into a complaint, the President:
(a) must notify the complaint to the respondent, unless the President is satisfied that notification would be likely to prejudice the safety of a person; and
(b) if the complaint is amended under subsection (3) by adding a respondent—must notify the complaint to that respondent, unless the President is satisfied that notification would be likely to prejudice the safety of a person; and
(c) if any person (other than the respondent) is the subject of an adverse allegation arising from the complaint—must notify the person of the adverse allegation, unless the President is satisfied:
(i) that notification would be likely to prejudice the safety of a person; or
(ii) that it is not practicable to do so; and
(d) may notify the complaint to any person who, in the opinion of the President, is likely to be able to provide information relevant to the complaint.
(8) For the purposes of paragraphs (7)(a), (b) and (c), the President must notify the respondent or the other person, as the case may be:
(a) under paragraph (7)(a)—as soon as the President has decided to inquire into the complaint; or
(b) under paragraph (7)(b)—as soon as the complaint has been amended; or
(c) under paragraph (7)(c)—as soon as the President forms the opinion that the person is the subject of an adverse allegation arising from the complaint.
(9) For the purposes of subsections (7) and (8), adverse allegation means an allegation:
(a) that:
(i) one or more acts have been done; or
(ii) one or more omissions or practices have occurred; and
(b) that those acts, omissions or practices are unlawful discrimination.
Note: Unlawful discrimination is defined in subsection 3(1).
(10) The President:
(a) must, having regard to:
(i) the nature of the complaint; and
(ii) the needs of the complainant or complainants; and
(iii) the needs of the respondent;
act expeditiously in dealing with the complaint in accordance with this section; and
(b) must use the President’s best endeavours to finish dealing with the complaint within 12 months after the complaint was referred to the President under section 46PD.
(11) Subsections (6) and (10) do not impose a duty on the President that is enforceable in court.
(12) Subsection (11) does not affect a legally enforceable obligation to observe the rules of natural justice.
46PG Withdrawal of complaint
(1) Any complainant to a complaint may withdraw the complaint, with the leave of the President.
(2) The President must grant leave if the President is satisfied that all the affected persons agree to withdrawal of the complaint. The President cannot grant leave unless the President is satisfied that they all agree.
46PH Termination of complaint
Discretionary termination of complaint
(1) The President may terminate a complaint on any of the following grounds:
(a) the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination;
(b) the complaint was lodged more than 24 months after the alleged acts, omissions or practices took place;
(c) the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
(d) in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(e) the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;
(f) in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(g) the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;
(h) the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
Note: An act, omission or practice may not be unlawful discrimination because an exemption applies (for example, section 18D of the Racial Discrimination Act 1975). Accordingly, consideration by the President of the question of whether an act, omission or practice is not unlawful discrimination will involve consideration of whether an exemption applies.
(1A) A complaint may be terminated under subsection (1) at any time, even if an inquiry into the complaint has begun.
Mandatory termination of complaint
(1B) The President must terminate a complaint if the President is satisfied that:
(a) the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b) there is no reasonable prospect of the matter being settled by conciliation.
(1C) The President must terminate a complaint if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.
(1D) A complaint may be terminated under subsection (1B) or (1C) at any time, even if an inquiry into the complaint has begun.
Notification
(2) If the President terminates a complaint, the President must notify the complainants in writing of the termination and of the reasons for the termination.
(2A) A notice under subsection (2) must include a statement explaining that the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) can award costs in proceedings under section 46PO in certain circumstances.
(3) On request by an affected person who is not a complainant, the President must give the affected person a copy of the notice that was given to the complainants under subsection (2).
Revocation
(4) The President may revoke the termination of a complaint, but not after an application is made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under section 46PO in relation to the complaint.
46PI President’s power to obtain information
(1) This section applies if the President has reason to believe that a person is capable of providing information (relevant information) or producing documents (relevant documents) relevant to an inquiry under this Division.
(2) The President may serve a written notice on the person, requiring the person to do either or both of the following within a reasonable period specified in the notice, or on a reasonable date and at a reasonable time specified in the notice:
(a) give the President a signed document containing relevant information required by the notice;
(b) produce to the President such relevant documents as are specified in the notice.
(3) If the notice is served on a body corporate, the document referred to in paragraph (2)(a) must be signed by an officer of the body corporate.
(4) If a document is produced to the President in accordance with a requirement under this section, the President:
(a) may take possession of the document; and
(b) may make copies of the document or take extracts from the document; and
(c) may retain possession of the document for as long as is necessary for the purposes of the inquiry to which the document relates.
(5) While the President retains any document under this section, the President must allow the document to be inspected, at all reasonable times, by any person who would be entitled to inspect the document if it were not in the possession of the President.
46PJ President may hold conferences
President may decide to hold a conference
(1) For the purpose of attempting to conciliate a complaint in accordance with section 46PF, the President may decide to hold a conference, to be presided over by:
(a) the President; or
(b) a suitable person (other than a Commission member) determined by the President.
President may invite people to attend
(2) The President may:
(a) invite any or all of the complainants or respondents to attend the conference; and
(b) invite any other person to attend the conference, if:
(i) the President reasonably believes that the person is capable of giving information that is relevant to the conciliation of the complaint; or
(ii) the President considers that the person’s presence at the conference is likely to be conducive to the conciliation of the complaint.
President may require people to attend
(3) The President may, by written notice given to a person referred to in subsection (2), require the person to attend the conference (whether or not the person has already been invited to attend the conference).
Note: Failure to comply with a notice is an offence—see subsection (5).
(4) A notice under subsection (3):
(a) must specify the place and time of the conference, not being a time that is less than 14 days after the notice is given; and
(b) must set out the effect of subsection (5).
(5) A person commits an offence if:
(a) the person has been given a notice under subsection (3) requiring the person to attend a conference; and
(b) the person refuses or fails to comply with the requirement.
Penalty: 10 penalty units.
(6) Subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Expenses for attendance
(7) A person who is required to attend the conference is entitled to be paid, by the Commonwealth, a reasonable sum for the person’s expenses of attendance.
46PK Proceedings at conferences
(1) Subject to this section, a conference mentioned in subsection 46PJ(1) is to be conducted in such manner as the person presiding at the conference considers appropriate.
(2) The conference is to be conducted in private.
(3) The person presiding at the conference must take all reasonable steps to ensure that the conduct of the conference does not disadvantage any complainant or respondent.
(4) Unless the person presiding at the conference consents:
(a) an individual is not entitled to be represented at the conference by another person; and
(b) a body (whether or not incorporated) is not entitled to be represented at the conference otherwise than by a person who is an officer or employee of the body.
(5) Despite paragraph (4)(a), an individual who is unable to attend the conference because the individual has a disability is entitled to nominate another person to attend instead on his or her behalf.
(6) If the person presiding at the conference considers that an individual is unable to participate fully in the conference because the individual has a disability, the individual is entitled to nominate another person to assist him or her at the conference.
(7) For the purposes of this section, disability has the same meaning as in the Disability Discrimination Act 1992.
46PKA Things said in conciliation are not admissible in evidence in certain proceedings
(1) Evidence of anything said or done by a person in the course of the conciliation of a complaint in accordance with section 46PF is not admissible in any proceedings relating to the alleged acts, omissions or practices.
(2) Subsection (1) does not apply for the purposes of the application of section 46PSA.
46PM Failure to give information or produce documents
(1) A person must not refuse or fail:
(a) to give information; or
(b) to produce a document;
when so required under section 46PI.
Penalty: 10 penalty units.
(1A) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) Subsection 4K(2) of the Crimes Act 1914 does not apply to this section.
(3) It is a reasonable excuse for the purposes of this section for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of this section.
46PN False or misleading information
A person must not give information or make a statement to the Commission, to the President or to any other person exercising powers or performing functions under this Act, knowing that the information or statement is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
Division 2—Proceedings in the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)
46PO Application to court if complaint is terminated
Making an application
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
(2A) The application may be made:
(a) by an affected person in relation to the terminated complaint:
(i) on that person’s own behalf; or
(ii) on behalf of that person and one or more other affected persons in relation to the terminated complaint; or
(b) by 2 or more affected persons in relation to the terminated complaint:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other affected persons in relation to the terminated complaint; or
(c) by a person or trade union who lodged the terminated complaint, on behalf of one or more affected persons in relation to the terminated complaint.
Note: Part IVA of the Federal Court of Australia Act 1976 also allows representative proceedings to be commenced in the Federal Court in certain circumstances.
(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
Court orders
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(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 a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under this section in certain circumstances—see section 43 of the Federal Court of Australia Act 1976.
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under this section in certain circumstances—see section 214 of the Federal Circuit and Family Court of Australia Act 2021.
(4A) In the case of a representative application, subsection (4) applies as if a reference to an applicant included a reference to a person on whose behalf the application is made, other than one who has opted out under subsection 46POB(3).
(5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976).
(6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.
46POA Conditions for making a representative application
(1) A representative application may not be made without the written consent of each person on whose behalf the application is made (other than the person making the application).
(2) A representative application must:
(a) describe or otherwise identify the persons on whose behalf the application is made; and
(b) include a statement by the person making the application certifying that each person on whose behalf the application is made has consented, in writing, to the making of the application on the person’s behalf; and
(c) specify the nature of the relief sought.
46POB Additional rules applying to representative applications
Separate applications may not be made
(1) A person on whose behalf a representative application is made is not entitled to make a separate application under subsection 46PO(1) in respect of the same subject matter unless the person opts out under subsection (3) of this section.
Right to opt out
(2) If a representative application is made, the court concerned must fix a date before which a person may opt out of the proceeding commenced by the application.
(3) A person on whose behalf the application is made (other than the person who made the application) may opt out of the proceeding by written notice to the court concerned:
(a) before the date so fixed; and
(b) in accordance with the rules of court of the court concerned (if any).
(4) The court concerned, on the application of the person who made the application, a respondent or a person on whose behalf the application is made, may fix another date so as to extend the period during which a person may opt out of the proceeding.
(5) Except with the leave of the court concerned, the hearing of the proceeding must not commence earlier than the date before which a person may opt out of the proceeding.
Settlement and discontinuance
(6) A proceeding commenced by a representative application may not be settled or discontinued without the approval of the court concerned.
(7) If the court concerned gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the court.
46PP Interim injunction to maintain status quo etc.
(1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person.
(2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
(3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.
(4) The court concerned may discharge or vary an injunction granted under this section.
(5) The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.
46PQ Right of representation
(1) A party in proceedings under this Division:
(a) may appear in person; or
(b) may be represented by a barrister or a solicitor; or
(c) may be represented by another person who is not a barrister or solicitor, unless the court is of the opinion that it is inappropriate in the circumstances for the other person to appear.
(2) A person, other than a barrister or solicitor, is not entitled to demand or receive any fee or reward, or any payment for expenses, for representing a party in proceedings under this Division.
46PR Court not bound by technicalities
In proceedings under this Division, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution.
46PS Report by President to court
(1) The President may provide the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) with a written report on a complaint that has been terminated under paragraph 46PF(1)(b) or section 46PH.
(2) The report must not set out or describe anything said or done in the course of conciliation proceedings under this Part (including anything said or done at a conference held under this Part).
(3) The President may give a copy of the report to the applicant and the respondent, and to any relevant member of the Commission.
46PSA Costs
Scope
(1) This section applies to proceedings (including an appeal) in a court that relate to an application made by a person (the applicant) under section 46PO in respect of one or more respondents to a terminated complaint.
When respondent liable for costs
(2) Subject to subsection (4), if the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicant’s costs.
(3) The court may order that the costs to be paid by the respondent be assessed on an indemnity basis or otherwise.
(4) If the court is satisfied that the applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.
When applicant liable for costs
(5) Subject to subsection (6), the applicant must not be ordered by the court to pay costs incurred by another party to the proceedings.
(6) The applicant may be ordered to pay the costs if:
(a) the court is satisfied that the applicant instituted the proceedings vexatiously or without reasonable cause; or
(b) the court is satisfied that the applicant’s unreasonable act or omission caused the other party to incur the costs; or
(c) all of the following apply:
(i) the other party is a respondent who was successful in the proceedings;
(ii) the respondent does not have a significant power advantage over the applicant;
(iii) the respondent does not have significant financial or other resources relative to the applicant.
Representative applications
(7) In the case of a representative application, subsection (6) does not authorise the court concerned to award costs against a person on whose behalf the application is made other than the person who made the application.
46PT Assistance by Commission
The Commission may help a person to prepare the forms required for the person to make an application under this Division.
46PU Assistance in proceedings before the court
(1) A person who:
(a) has commenced or proposes to commence proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Division; or
(b) is a respondent in proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Division;
may apply to the Attorney‑General for the provision of assistance under this section in respect of the proceedings.
(2) If a person makes an application for assistance and the Attorney‑General is satisfied that:
(a) it will involve hardship to that person to refuse the application; and
(b) in all the circumstances, it is reasonable to grant the application;
the Attorney‑General may authorise the provision by the Commonwealth to that person, on such conditions (if any) as the Attorney‑General determines, of such legal or financial assistance in respect of the proceedings as the Attorney‑General determines.
46PV Amicus curiae function of Commission members
(1) A special‑purpose Commissioner has the function of assisting the Federal Court and the Federal Circuit and Family Court of Australia (Division 2), as amicus curiae, in the following proceedings under this Division:
(a) proceedings in which the special‑purpose Commissioner thinks that the orders sought, or likely to be sought, may affect to a significant extent the human rights of persons who are not parties to the proceedings;
(b) proceedings that, in the opinion of the special‑purpose Commissioner, have significant implications for the administration of the relevant Act or Acts;
(c) proceedings that involve special circumstances that satisfy the special‑purpose Commissioner that it would be in the public interest for the special‑purpose Commissioner to assist the court concerned as amicus curiae.
(2) The function may only be exercised with the leave of the court concerned.
(3) In this section, special‑purpose Commissioner means:
(a) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
(b) the Disability Discrimination Commissioner; and
(c) the Human Rights Commissioner; and
(d) the Race Discrimination Commissioner; and
(e) the Sex Discrimination Commissioner; and
(f) the Age Discrimination Commissioner; and
(g) the National Children’s Commissioner.
Part IIC—Referral of discriminatory awards and determinations to other bodies
46PW Referral of discriminatory industrial instruments to the Fair Work Commission
(1) A complaint in writing alleging that a person has done a discriminatory act under an industrial instrument may be lodged with the Commission by:
(a) a person aggrieved by the act, on that person’s own behalf or on behalf of that person and one or more other persons aggrieved by the act; or
(b) 2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or
(c) a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class; or
(d) a trade union, on behalf of one or more of its members aggrieved by the act or on behalf of a class of its members aggrieved by the act.
(2) If the Commission receives a complaint under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the act is a discriminatory act, the President must refer the industrial instrument to the Fair Work Commission. However, the President need not refer the industrial instrument if the President is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
(4) If the President decides not to refer the industrial instrument, the President must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision.
(5) If the President refers the industrial instrument to the Fair Work Commission, the President must give notice in writing of the outcome of the referral to the complainant or each of the complainants.
(6) The President may obtain documents or information under section 46PI for the purposes of this section.
(7) In this section:
discriminatory act under an industrial instrument means an act that would be unlawful under:
(a) Part 4 of the Age Discrimination Act 2004; or
(b) Part 2 of the Disability Discrimination Act 1992; or
(c) Part II of the Sex Discrimination Act 1984;
but for the fact that the act was done in direct compliance with an industrial instrument.
industrial instrument means:
(a) a fair work instrument (within the meaning of the Fair Work Act 2009); or
(b) a transitional instrument, or a Division 2B State instrument, (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009).
(8) For the purposes of the definition of discriminatory act under an industrial instrument in subsection (7), the fact that an act is done in direct compliance with the industrial instrument does not of itself mean that the act is reasonable.
46PX Referral of discriminatory determinations to the Remuneration Tribunal
(1) A complaint in writing alleging that a person has done a discriminatory act under a determination may be lodged with the Commission by:
(a) a person aggrieved by the act, on that person’s own behalf or on behalf of that person and one or more other persons aggrieved by the act; or
(b) 2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or
(c) a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class.
(2) If the Commission receives a complaint under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the act is a discriminatory act, the President must refer the determination to the Remuneration Tribunal. However, the President need not refer the determination if the President is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
(4) If the President decides not to refer the determination, the President must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision.
(5) If the President refers the determination to the Remuneration Tribunal, the President must give notice in writing of the outcome of the referral to the complainant or each of the complainants.
(6) The President may obtain documents or information under section 46PI for the purposes of this section.
(7) In this section:
determination means:
(a) a determination made on or after 19 January 1994 by the Remuneration Tribunal under the Remuneration Tribunal Act 1973; or
(b) a variation made on or after 19 January 1994 by that Tribunal to a determination made by it under that Act before 19 January 1994.
discriminatory act under a determination means an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act was done in direct compliance with a determination.
(8) For the purposes of the definition of discriminatory act under a determination in subsection (7), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable.
46PY Referral of discriminatory determinations to the Defence Force Remuneration Tribunal
(1) A complaint in writing alleging that a person has done a discriminatory act under a determination may be lodged with the Commission by:
(a) a person aggrieved by the act, on that person’s own behalf or on behalf of that person and one or more other persons aggrieved by the act; or
(b) 2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or
(c) a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class.
(2) If the Commission receives a complaint under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the act is a discriminatory act, the President must refer the determination to the Defence Force Remuneration Tribunal. However, the President need not refer the determination if the President is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.
(4) If the President decides not to refer the determination, the President must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision.
(5) If the President refers the determination to the Defence Force Remuneration Tribunal, the President must give notice in writing of the outcome of the referral to the complainant or each of the complainants.
(6) The President may obtain documents or information under section 46PI for the purposes of this section.
(7) In this section:
determination means:
(a) a determination made on or after 15 January 1996 by the Defence Force Remuneration Tribunal under section 58H of the Defence Act 1903; or
(b) a variation made on or after 15 January 1996 by that Tribunal to a determination made by it under that section before 15 January 1996.
discriminatory act under a determination means an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act was done in direct compliance with a determination.
(8) For the purposes of the definition of discriminatory act under a determination in subsection (7), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable.
Part III—Miscellaneous
46PZ Transfer of complaints from the Inspector‑General of Intelligence and Security
(1) If the Inspector‑General of Intelligence and Security transfers all or part of a complaint to the Commission under section 32AG of the Inspector‑General of Intelligence and Security Act 1986, in respect of an act or practice of ACIC or the Australian Federal Police, the Commission may determine, in writing, that a complaint is taken to have been:
(a) made as referred to in paragraph 20(1)(b) of this Act; or
(b) lodged under section 46P of this Act.
Note: The Commission may also transfer a complaint or part of a complaint to the Inspector‑General of Intelligence and Security under subsection 20(4C).
(2) The determination has effect accordingly.
(3) The determination is not a legislative instrument.
47 Declaration of international instruments
(1) The Minister may, after consulting the appropriate Minister of each State, by legislative instrument, declare an international instrument, being:
(a) an instrument ratified or acceded to by Australia; or
(b) a declaration that has been adopted by Australia;
to be an international instrument relating to human rights and freedoms for the purposes of this Act.
(2) The declaration must include:
(a) a copy of the international instrument; and
(b) a copy of whichever of the following is applicable:
(i) Australia’s instrument of ratification of, or accession to, the international instrument;
(ii) the terms of any explanation given by Australia of its vote in respect of the international instrument.
(3) Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the declaration.
48 Protection from civil actions
(1) Subsection (2) applies in relation to any of the following persons:
(a) the Commission;
(b) a member of the Commission;
(c) a person acting for or on behalf of:
(i) the Commission; or
(ii) a member of the Commission.
(2) The person is not liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance, or purported performance, of any function, or in exercise or purported exercise of any power, conferred on the Commission or the member.
(3) Where:
(a) a complaint has been made to the Commission; or
(b) a submission has been made, a document or information has been furnished, or evidence has been given, to the Commission or to a person acting on behalf of the Commission;
a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was furnished or the evidence was given.
49 Non‑disclosure of private information
(1) A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or
(b) make use of any such information as is mentioned in paragraph (a); or
(c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(2) A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not be required:
(a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first‑mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or
(b) to produce in a court a document relating to the affairs of another person of which the first‑mentioned person has custody, or to which that person has access, by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission;
except where it is necessary to do so for the purposes of this Act.
(3) Nothing in this section prohibits a person from:
(a) making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made for the purposes of or pursuant to that Act;
(b) divulging or communicating information, or producing a document, to an instrumentality of a State in accordance with an arrangement in force under section 16; or
(c) divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Nothing in subsection (2) prevents a person being required, for the purposes of or pursuant to an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced.
(4A) Subsection (1) does not prevent the Commission, or a person acting for or on behalf of the Commission, from giving information or documents in accordance with paragraph 20(4A)(e) or (4C)(f).
Note: A defendant bears an evidential burden in relation to a matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).
(4B) Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so:
(a) in the performance of a duty under or in connection with this Act; or
(b) in the course of acting for or on behalf of the Commission.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal Code).
(4C) Subsection (1) does not prevent the Commission, or a person acting for or on behalf of the Commission, from giving information or documents to an IGIS official for the purpose of the IGIS official exercising a power, or performing a function or duty, as an IGIS official.
Note: A defendant bears an evidential burden in relation to a matter in subsection (4C) (see subsection 13.3(3) of the Criminal Code).
(5) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
49A Information stored otherwise than in written form
If information is recorded or stored by means of a mechanical, electronic or other device, any duty imposed by this Act to produce the document recording that information is to be construed as a duty to provide a document containing a clear reproduction in writing of the information.
49B Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)
The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction with respect to civil matters arising under Part II, IIB or IIC.
49C Compensation for acquisition of property
(1) If the application of any of the provisions of this Act would result in an acquisition of property from any person having been made otherwise than on just terms, the person is entitled to such compensation from the Commonwealth as is necessary to ensure that the acquisition is made on just terms.
(2) The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent jurisdiction with respect to matters arising under subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts, other than jurisdiction of the High Court under section 75 of the Constitution.
50 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.