(1) There is established by this Act a Commission by the name of the Human Rights Commission.
(2) The Commission—
(a) is a body corporate, with perpetual succession;
(b) shall have a 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 seal of the Commission affixed to a document and shall presume that it was duly affixed.
Membership of Commission
(1) The Commission shall consist of a Chairman, a Deputy Chairman and not less than 5 or more than 9 other members.
(2) The Chairman, the Deputy Chairman and the other members shall be appointed by the Governor-General.
(3) A member other than a member who is, and is expected to continue to be, a Judge may be appointed either as a full-time member or as a part-time member.
(4) If the Chairman—
(a) is a Judge who does not devote the whole of his time to the duties of his office as Chairman; or
(b) is a part-time member,
the Deputy Chairman shall be appointed as a full-time member.
(5) The affairs of the Commission shall, in accordance with the decisions and subject to the directions of the Commission, be administered—
(a) if the Chairman—
(i) is a Judge who devotes the whole of his time to the duties of his office as Chairman; or
(ii) is a full-time member,
by the Chairman; or
(b) in any other case—by the Deputy Chairman.
(6) If—
(a) the affairs of the Commission are required by sub-section (5) to be administered by the Deputy Chairman; and
(b) the Deputy Chairman is acting as Chairman,
the Deputy Chairman shall continue to administer the affairs of the Commission.
(7) A person shall not be appointed as Chairman unless he is or has been a Judge or is enrolled as a barrister or solicitor, as a barrister and solicitor, or as a legal practitioner, of the High Court, of another federal court or of the Supreme Court of a State or Territory.
(8) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of any vacancy in the office of Chairman or Deputy Chairman.
Arrangement for appointment of the holder of a judicial office of a State or of the Northern Territory
(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 or of the Northern Territory, enter into such arrangement with the Governor of that State or the Administrator of that Territory, as the case may be, as is necessary to secure that person’s services.
(2) An arrangement under sub-section (1) may provide for the Commonwealth to reimburse a State or the Northern Territory with respect to the services of the person to whom the arrangement relates.
Functions of Commission
(1) The functions of the Commission are—
(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 are, or would be, inconsistent with or contrary to any human rights, and to report to the Minister the results of any such examination;
(b) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and—
(i) where the Commission considers it appropriate to do so— endeavour to effect a settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect a settlement of those matters—to report to the Minister the results of its inquiry and of any endeavours it has made to effect such a settlement;
(c) 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;
(d) 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;
(e) 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;
(f) to promote an understanding and acceptance, and the public discussion, of human rights in Australia and the external Territories;
(g) 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;
(h) to perform—
(i) any functions conferred on the Commission by any other enactment;
(ii) any functions conferred on the Commission pursuant to any arrangement in force under section 11; and
(iii) any functions conferred on the Commission by any State Act or Northern Territory enactment, being functions that are declared by the Minister, by notice published in the Gazette, to be complementary to other functions of the Commission; and
(j) 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) (a) or (b) 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) (a) or (b) where the act or practice is done or engaged in solely for the purpose referred to in paragraph (a).
(3) For the purpose of the performance of its functions, the Commission may work with and consult appropriate non-governmental organizations.
Powers and duties of Commission
10. (1) 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.
(2) The Commission may at any time report to the Minister on any matter arising in the course of the performance of its functions and shall report to the Minister on such a matter if requested by him to do so.
(3) The Commission shall perform the functions referred to in paragraph 9 (1) (b)—
(a) when the Commission is requested to do so by the Minister;
(b) subject to sub-sections (4) and (5), when a complaint is made in writing to the Commission that the act or practice is inconsistent with or contrary to any human right; or
(c) when it appears to the Commission to be desirable to do so.
(4) The Commission may, in its discretion, decide not to hold an inquiry as a result of a complaint if—
(a) the complaint is frivolous or vexatious or is not made in good faith;
(b) the subject-matter of the complaint is trivial;
(c) the act or practice, if established, would not be inconsistent with or contrary to any human right;
(d) some other remedy in relation to the subject-matter of the complaint is reasonably available to the complainant; or
(e) the subject-matter of the complaint could be more effectively or
conveniently dealt with by another statutory authority.
(5) The Commission may, in its discretion, decide not to hold an inquiry as a result of a complaint if a period of more than 12 months has elapsed since the act was done or since the last occasion when an act was done in pursuance of the practice.
(6) Where the Commission decides in accordance with sub-section (4) or (5) not to hold an inquiry as a result of a complaint, it shall forthwith inform the complainant in writing of its decision and the reasons for that decision.
(7) Where the Commission holds an inquiry as a result of a complaint, it shall, forthwith upon the making of its report to the Minister, furnish to the complainant a copy of its findings and of any recommendations included in its report.
Inter-governmental arrangements
11. (1) The Minister may make an arrangement with a Minister of a State or of the Northern Territory for or in relation to—
(a) the performance on a joint basis of functions relating to the promotion of the observance of human rights in that State or Territory;
(b) the performance by that State or Territory or by an authority of that State or Territory on behalf of the Commonwealth of functions (including functions of the Commission) relating to the promotion of the observance of human rights; or
(c) the performance by the Commission of functions on behalf of that State or Territory relating to the promotion of the observance of human rights.
(2) An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Minister of the State or of the Northern Territory with whom the arrangement is made think necessary.
(3) The Minister may arrange with the Minister of a State or of the Northern Territory 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 has been made, varied or revoked shall be published in the Gazette.
Form of examinations or inquiries to be at discretion of Commission
(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 such 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 who has made a complaint to the Commission, or has furnished or proposes to furnish information, has produced or proposes to produce a document, has given or proposes to give evidence or has made or proposes to make a submission to the Commission or to a prescribed person acting 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) A person shall not contravene or fail to comply with a direction given by the Commission under sub-section (2) that is applicable to him.
Penalty: $1,000 or imprisonment for 3 months, or both.
Power of Commission to authorize person to conduct inquiry or investigate matter on its behalf
(1) Where the Commission is required or decides under sub-section 10 (3) to inquire into an act or practice, the Commission may, by resolution, authorize a prescribed person—
(a) to inquire into that act or practice on behalf of the Commission; or
(b) to investigate a particular aspect of that act or practice on behalf of the Commission.
(2) A resolution under sub-section (1) may be revoked by a further resolution of the Commission.
(3) Where a person is authorized by a resolution under paragraph (1) (a) to inquire into an act or practice on behalf of the Commission—
(a) the person may hold the inquiry, and, where the person considers it appropriate to do so, endeavour to effect a settlement of the matters that gave rise to the inquiry, as if the Commission were constituted by the person alone and, for the purposes of so holding the inquiry and endeavouring to effect a settlement, the person may exercise all the powers of the Commission;
(b) the person shall inform the Commission of the results of the inquiry and of any endeavours made by the person to effect a settlement; and
(c) any report by the Commission to the Minister in relation to the inquiry and any endeavours made to effect a settlement shall be made as if the inquiry had been held, and those endeavours had been made, by the Commission itself.
(4) Where a person is authorized by a resolution under paragraph (1) (b) to investigate a particular aspect of an act or practice on behalf of the Commission—
(a) the person may, for the purposes of carrying out that investigation, exercise all the powers of the Commission; and
(b) the person shall inform the Commission of the results of that investigation.
(5) Where the Commission is required or decides under sub-section 10 (3) to inquire into an act or practice, a resolution by the Commission under sub-section (1) of this section in relation to that act or practice or a particular aspect of that act or practice does not prevent the Commission itself from inquiring into, or investigating that aspect of, that act or practice or endeavouring to effect a settlement of the matters that gave rise to the inquiry.
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, at his option, either—
(a) to appear before the Commission, whether in person or by a representative, and make oral submissions in relation to the act or practice; or
(b) to make written submissions to the Commission in relation to the act or practice,
or to do both of those things.
Evidence
15. (1) Where the Commission has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relevant to a matter under examination or inquiry under this Act, a member may, by notice in writing served on that person, require that person—
(a) to furnish to the Commission or to a prescribed person, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission or to a prescribed person, within the time specified in the notice, any such documents; or
(c) to appear before the Commission or before a prescribed person at a time and place specified in the notice to give any such evidence and to produce any such documents.
(2) Where the Attorney-General furnishes to the Commission a certificate certifying that the disclosure of information concerning a specified matter (including the furnishing of information in answer to a question) or the disclosure of the contents of any documents would be contrary to the public interest—
(a) by reason that it would prejudice the security, defence or international relations of Australia;
(b) by reason that it would involve the disclosure of communications between a Minister and a Minister of a State or of the Northern Territory, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State or the Administration of the Northern Territory;
(c) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or a committee of the Cabinet; or
(d) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the documents should not be disclosed,
then, subject to sub-section (3), a member is not entitled to require a person to furnish any information concerning the matter, to answer questions concerning the matter or to produce those documents.
(3) Where the Attorney-General has certified in accordance with sub-section (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (2) (a), (b) or (c), the Chairman shall consider whether the information or the contents of the document should be disclosed and, if he considers that the information or the contents of the document should be so disclosed, the person on whom the notice was served shall furnish the information or produce the document accordingly.
(4) In considering whether information or the contents of a document should be disclosed as mentioned in sub-section (3), the Chairman shall take as the basis of his consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Commission that the Commission should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.
(5) The Commission may require the evidence referred to in paragraph (1) (c) to be given on oath or affirmation, and for that purpose any prescribed person may administer an oath or affirmation.
(6) 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 answers he will give to questions asked him will be true.
(7) A person shall not—
(a) without reasonable excuse, refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;
(b) in purported compliance with such a notice, knowingly furnish information that is false or misleading; or
(c) when appearing before the Commission or a prescribed person, knowingly give evidence that is false or misleading.
Penalty: $1,000.
(8) Without limiting the generality of the expression “reasonable excuse” in paragraph (7) (a), it is hereby declared for the removal of doubt that it is a reasonable excuse for a person to refuse to furnish information or produce a document that he is required to furnish or produce under this section, or to refuse to answer a question that he is asked when giving evidence under this section, that the information, the production of the document or the answer to the question might tend to incriminate him.
(9) A person who is required to appear before the Commission or before a prescribed person is entitled to be paid such fees and allowances for expenses as are prescribed.
(10) In relation to a time when a person is acting as Chairman, references in this section to the Chairman shall be read as references to that person.
Reports to contain recommendations
16. (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—
(a) the Commission shall serve notice in writing on the person setting out its findings and the reasons for those findings;
(b) the Commission may include in the notice any recommendations by the Commission for the purpose of preventing a repetition of the act or a continuation of the practice;
(c) the Commission shall include in its report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made in pursuance of paragraph (b); and
(d) the Commission 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.
Consultative committees
(1) The Commission may, with the approval of the Minister, establish such committees as it thinks desirable for the purpose of consultation with the Commission in relation to the performance of its functions.
(2) A consultative committee shall consist of a representative of each of such non-governmental organizations as the Commission determines and such other persons (if any) as the Commission considers appropriate.